A Guide to the Laws Governing the Conduct of French Public Servants
Klaus Decker, PRMPS
July 2003
The “Code of ethics” is a concept French lawyers recognize although the
terminology is differs from that used in English speaking nations. The English word
“ethics” is rather misleading for people used to French legal terminology. The literal
French translation of “ethics” would be “éthique”. On the one hand, this term would
make most people think of general questions concerning ethics or problems related to
bioethics and institutions such as the “Comité Consultatif National d’Ethique” (National
Consultative Bioethics Committee).1 This is why the term “code d’éthique” might seem
inappropriate.
On the other hand, the concept of a “code éthique” does exist in France. Texts
explicitly called “code éthique” can be found in various contexts such as the “Association
Professionnelle France Energie Eolienne” (French Professional Association of Wind
Energy)2 and the Tour de France.3 An unsophisticated translation of anglo-american legal
terminology cannot be excluded in this context. However, the denomination “code
éthique” seems to be a rather recent phenomenon which is not well established among
French scholars.
But there is a concept French lawyers are more familiar with. It is the idea of
“déontologie”, a term frequently used in French legal science. At first sight, this could be
surprising for American lawyers who might only have heard about the philosophical
concept of deontology.
The fact is that if there is any equivalent to a “code of ethics” in French law, it is
certainly the term “code de déontologie”.
1. The general legal framework
Before we have a closer look at the French experience with “codes de
déontologie” for government officials, it is indispensable to understand the legal context
of these codes. As a matter of fact, it is impossible within the limits of this article to
describe in detail the whole set of rules applying to public officials in France.4
Nevertheless, we will have to address some very technical questions first in order to
grasp the place which “codes de déontologie” occupy in the French legal system. Even if
Cf. the Committee’s website http://www.comite-ethique.fr/.
Cf. the Association’s website http://perso.wanadoo.fr/abies.be/fee/charte.htm.
3
http://www.letour.fr/2001/fr/infos/doc/01ethique.rtf.
4
For a brief description cf. Emmuanuel Aubin, Droit de la Fonction Publique, Paris : Gualino editors, 2001
and Jean-François Lachaume, La Fonction Publique, Paris : Dalloz, 3rd Edition 2002. For more details cf.
Jean-Marie Auby e. a., Droit de la Fonction Publique, Paris : Dalloz, 4th Edition 2002 and Yves Gaudemet,
Traité de Droit Administratif, Vol. 5 : La Fonction Publique, Paris : LGDJ, 12th Edition 2000.
1
2
we are more enthusiastic about French administrative law than Dicey5, the attempt to
understand the relevant legal framework within the French administrative legal system is
quite challenging.6
a) Statutory sources
Before 1946, there was no general civil service act (“statut général de la fonction
publique”). As a consequence, there was no general statute defining the rights and duties
of public officials.7 Although France has often been the source of inspiration for other
European countries to organize their civil service, the French general civil service act has
been preceded by Bavaria in 1806, Spain in 1854, Ireland in 1924 and the Netherlands in
19298.
But acts governing particular aspects of public employment came into effect in
France during the 19th century. They concerned specific questions such as the retirement
of public officials (1853), disciplinary measures against teachers (1880) and promotions
(1912).9
Several attempts to harmonize the existing rules and to create a general civil
service act failed. Finally, when an integrated law was promulgated it was in 1941 and
mixed ideas of the Third Republic and those of the “National Revolution,” the Vichy
Regime. These rules did not survive the re-establishment of the republican order
(ordinance of August 9th 1944).10
As a consequence, the law of October 19th 1946 was the first republican general
civil service act passed in France. After the transition to the 5th French Republic in 1958,
the ordinance of February 4th 1959 confirmed the rules codified before.11
At present, the legal framework for public officials is made up by the General
Civil Service Act for State and Territorial Civil Servants, which is the result of a series of
three laws enacted in the 1980s.12
The first law of July 13th 1983 determines the common rights and duties of the
three groups of civil services in France. It forms the first part (“titre premier”) of the
General Civil Service Act.
The second law of January 11th 1984 concerns the State Civil Service (second
part, “titre deuxième”), whereas the third law of January 26th 1984 relates to the territorial
civil service (third part, “titre troisième”).
Cf. his critical attitude towards “droit administratif” in A. V. Dicey, Introduction to the Study of the Law
of the Constitution, London: Macmillan and Co., 8th Edition 1915, p. 324-401.
6
For a description of French administrative law in English cf. Jean-Bernard Auby, Administrative Law in
France, in: René Seerden & Frits Strooink (eds.), Administrative Law of the European Union, its Member
States and the United States, Antwerp: Intersentia, 2001, p. 59-89.
7
For the history of the general civil service act cf. Jean-Marie Auby, p. 46 et seqq.
8
François Chambon & Olivier Gaspon, La déontologie administrative, Paris : LGDJ, 1996, p. 37.
9
Emmanuel Aubin, p. 16.
10
François Chambon & Olivier Gaspon, p. 38.
11
Emmanuel Aubin, p. 16.
12
Jean-Marie Auby, p. 48.
5
Finally, the law of July 9th 1986 codifies the rules concerning hospital civil
service, changed by three subsequent laws, and forms part four (“titre quatrième”) of the
General Civil Service Act.13
In addition to this General Civil Service Act, there are several so called
autonomous and specific civil service acts (“statuts autonomes” and “statuts
spécifiques”). The former relate to categories of civil servants such as judges,
parliamentary civil service, civil servants in university hospitals and in local chambers.
The latter determine the status of civil servants whose right to strike is partially or totally
restricted, such as members of the police and prison and air safety personnel.14
b) Regulations as source of rules related to “déontologie”
The recruiting corporations have rule-making power. The regulations they issue
are the most important source of civil service rules.
They can be divided in two groups: implementing regulations (“règlements
d’application”) and special civil service regulations (“statuts particuliers”). The former
simply implement and specify general rules defined by the statutes. The latter are decrees
in Council of State completing the General Civil Service Act by adapting it to the specific
needs of a given administration. The three laws mentioned above have authorized the use
of such decrees in Council of State to derogate to the general rules under certain
conditions. These decrees are so called special derogatory civil service regulations
(“statuts particuliers dérogatoires”). They are used, among others, for bodies whose
recruitment is made through the Ecole Nationale d’Administration or ENA (National
School of Administration).15
c) Case law
Last but not least, the case law of the administrative courts and especially of the
Council of State (“Conseil d’Etat”) has to be mentioned among the sources of rules
related to “déontologie”, although many lawyers familiar with the Anglo-American
common law tradition tend to underestimate this phenomenon. Even before the General
Civil Service Act was passed in 1946, the Council of State had elaborated a body of
general and specific rules related to civil service issues. Despite the rather recent
codification, this branch of administrative law is still to a high degree judge made. The
most useful tool created by the Council of State are certainly the general principles of law
(“principes généraux du droit”).16
2. What is “déontologie”?
In the French landscape of “déontologie”, the codes are still an exception. It is
therefore indispensable to have a closer look at the key elements of the concept of
“déontologie”, before analyzing the existing “codes de déontologie”.
13
Emmanuel Aubin, p. 17.
Emmanuel Aubin, p. 17. For more details cf. Jean-Marie Auby p. 49 et seqq.
15
For more details cf. Emmanuel Aubin, p. 18.
16
For more details cf. Emmanuel Aubin, p. 18 et seqq.
14
a) The concept of déontologie and its origin
The word “déontologie” first appeared in 1834 in the title of a publication by the
famous English utilitarian Jeremy Bentham,17 translated into French the same year.18 It
was actually a neologism based on the Greek terms “deon” (appropriate, duty) and
“logos” (science, explanation). For Bentham, this new concept was clearly a moral and
not a legal one.
Although the definitions of “déontologie” have evolved since the term has been
created, they always seem to contain both a moral and a legal aspect.
In a narrow sense, the term “déontologie” covers “all the duties inherent to the
exercise of a liberal professional activity [that are] generally determined by a professional
representation”.19 This definition had been adopted by the French legal system in 1947
when a “Code de déontologie médicale” was created by an order in council (règlement
d’administration publique).20 However, in 1986, it became evident that the narrow
concept of “déontologie” was no longer commonly accepted. A “Code de déontologie de
la police nationale” was enacted, although police is not particularly known to be liberal
profession. As a consequence, the approach of “déontologie” is much broader nowadays
than it used to be. In addition, the legal nature of the rules thus defined varies largely.
Some are just considered to be simple soft law containing moral obligations (“guides de
conduite” or codes of conduct). Others however have a binding legal effect that can be
enforced.
The French concept of “déontologie” for public officials, the so called
“déontologie administrative”, comprises core values such as loyalty, integrity,
responsibility and independence and is still related to the idea of a “morale
administrative” according to an expression used by the famous French scholar Maurice
Hauriou. However, there is no global approach to codify all binding rules related to this
concept in one single code. Some are not even part of any written code or statute, since
they are judge made.
As a consequence, we will not only have to consider the rules for public officials
that can be found in the existing “codes de déontologie”, but also those that are defined
by statute, decree or court decisions – as long as they are part of the “déontologie
administrative”.
b) Key aspects of “déontologie administrative”
17
Jeremy Bentham, Deontology; or, The science of morality: in which the harmony and co-incidence of
duty and self-interest, virtue and felicity, prudence and benevolence, are explained and exemplified,
London: Longman, Rees, Orme, Browne, Green, and Longman; [etc., etc.] 1834.
18
Déontologie et science de la morale, translation by B. Laroche, Paris, 1834.
19
Gérard Cornu, Vocabulaire juridique, Paris : Quadrige/Presses Universitaires de France, 2000.
20
Didier Jean-Pierre, La déontologie de l’administration, Que sais-je ? no. 3447, Paris : Presses
Universitaires de France, 1999, p. 4 ;
cf. http://www.conseil-national.medecin.fr/CNOM/Deontologie.nsf/V_DE/$first.
The contemporary concept of “déontologie administrative” being a very broad
one, quite a few different aspects can be distinguished. There are rules of “déontologie”
that predominantly refer to the public official himself as a person and there are others that
rather determine the way in which the administration acts as an abstract entity. However,
it is hazardous to make a clear distinction between both, because the administration is
composed of human beings that act on its behalf.
Most of these rules sound familiar and are part of an any modern civil service
system. However, we will have to analyze how the French administrative system defines
them and considers them to be part of the concept of “déontologie”.
As far as terminology is concerned, there is a difference between civil servants
(“fonctionnaires”) and employees in the civil service (“agents non titulaires”). However,
the professional duties and rights, as far as “déontologie” is concerned, are the same for
both categories. That is why the term public officials (“agent public”) is generally used in
this text.
aa) Personal and exclusive service (« exercice personnel et exclusif »)
According to article 25 of the General Civil Service Act, public officials have to
devote their entire professional activity to the tasks they have been assigned to. It is selfevident that moonlighting is not allowed. But in addition, public officials are forbidden to
exercise a remunerative activity of any kind in the private sector. This principle is
specified by the decree-law of 1936 (article 2) “concerning the plurality of pensions,
remunerations and functions”.21 There are even disciplinary sanctions provided in its
article 6. The aim is to avoid situations where a public official is durably bound by ties of
subordination to private interests or corporations.22
However, there can be exceptions. According to article 25 of the General Civil
Service Act exceptions can be provided by a decree in Council of State which has never
been enacted. As a consequence, the decree-law of 1936 is still applicable. Article 6 of
this decree-law entitles public officials to produce works of scientific, literary and artistic
interest. Moreover, they are allowed to render an expert opinion or to work as consultants
for an administrative or judicial authority. Furthermore, they can be authorized to lecture
in their field of expertise. In addition, the exercise of a liberal profession that is
considered to be inseparably connected with the very nature of their work is possible.
This concerns predominantly the case of university professors, games masters and
musicians. Finally, it is possible to have a fulltime job in a local administration while
being a farmer.23
21
See the text of the decree-law in Vincent Potier & Vincent Péguy, La déontologie dans la fonction
publique territoriale, Paris : Le Moniteur, 2002, p. 137.
22
Jean-Marie Auby, p. 294.
23
Vincent Potier & Vincent Péguy, p. 28.
There is another principle provided by article 7 of this decree-law according to
which it is also not allowed to accumulate two employments in the public sector.24
However, there can be exceptions for at most two employments if there is an agreement
of the administrations concerned, if the following two conditions are fulfilled: the
duration must be limited and there must not be any harmful consequences for the task the
public official is assigned to.
No rule explicitly prohibits the exercise of other public activities (participation in
an examination board etc.) by public officials. This means that the general principle
expressed in article 25 applies, according to which public officials have to devote their
entire professional activity to the tasks they have been assigned to. As a consequence, the
public official can be asked to stop his secondary activities. In any case, the public
official is requested to indicate the amount of the financial compensations he receives.
bb) Duty to obey (« devoir d’obéissance »)
The Council of State had already defined the duty to obey long before it was
codified by statute. Not surprisingly, the first attempt of explicit codification was
undertaken by the Vichy General Civil Service Act of 1941 whose article 12 requested
public officials to obey “hierarchical orders”. In reaction to this, the 1946 General Civil
Service Act was much more discreet saying that every public official was responsible for
the execution of the tasks he is assigned to. However, the General Civil Service Act of
1983 is more explicit although the term “obedience” is not used either. According to its
article 28 every public official has to observe the instructions given by his superior. If he
does not, he risks disciplinary sanctions.25
However, article 28 of the General Civil Service Act makes an exception to this
duty to obey if two cumulative conditions are fulfilled: The order has to be clearly illegal
and likely to seriously harm a public interest. It is true that many given orders are clearly
illegal. But orders that are likely to seriously harm a public interest are rare and generally
difficult to interpret. Courts are reluctant to accept that this second condition is fulfilled.
The situation is even more complicated if we take into consideration article 122-4 of the
French Criminal Code according to which a public official who executes an order given
by his superior does not commit a criminal offence except if the order is clearly illegal.26
The legislator has made two other exceptions to the duty to obey. The first one is
defined by articles 5 and 6 of a decree of 1982 authorizing public officials to leave their
post there is an serious and imminent danger for their health (« droit de retrait »). The
second exception is provided by article 6 of the General Civil Service Act in case of
sexual harassment.27
24
For more details cf. Vincent Potier & Vincent Péguy, p. 29.
Jean-Marie Auby, p. 297.
26
Jean-Marie Auby, p. 298.
27
For more details cf. Jean-Marie Auby, p. 299, Vincent Potier & Vincent Péguy, p. 21 with a short
summary of different cases.
25
cc) Duty to be impartial (« obligation d’impartialité »)
Impartiality is a general principle of law every administration has to respect. It
does not only concern the way in which the administration works, but it also implies a
professional duty for every public official.
The duty to be impartial is not mentioned by any law except for article 7 of the
“code de déontologie de la police nationale”. It has been created by the courts, but it is
difficult to define it precisely, as they use it often implicitly and indirectly and in
combination with the principles of equality, neutrality or independence of public
officials. Nevertheless, four different types of situations can be found in the relevant case
law in which the duty to be impartial has been considered to be violated.
A public official is supposed not to be impartial if one of his personal interests is
affected by a certain decision. The courts have also ruled that strong personal feelings can
prevent somebody from being impartial. That is for example the case if a public official is
relocated for simple reasons of personal animosity.
In addition, a public official is considered to be partial if he has made a
preliminary public statement on the particular issue concerned.
Finally, the duty to be impartial is not respected if the public official in question is
not objective for any reason whatsoever.28
dd) Duty to be neutral (« obligation de neutralité »)
The principle of neutrality is also closely related to the idea of equality. As far as
“déontologie” is concerned, three major aspects can be distinguished: non-discrimination,
the duty to observe a certain reserve and the secular principle.
Non-discrimination
Since neutrality is a particular expression of the principle of equality, public
officials have to treat cases in a non-discriminatory way. These principles are codified in
articles 6, 7 and 18 of the General Civil Service Act. Public officials are not only under
the legal obligation to treat similar cases in the same way, but they are also not allowed to
make a difference for reasons of origin, sex, morality, ethnicity, nationality, race or
religion. If somebody is denied a legal right for one of these reasons by a public official,
the latter risks criminal charges according to article 187-1 of the French Criminal Code.29
Not only ordinary citizens are protected by the principle of neutrality. It is also a
means of protection for the administration itself. Applicants for a job as public official
28
29
For more details cf. Jean-Marie Auby, p. 300.
Jean-Marie Auby, p. 300 ; Vincent Potier & Vincent Péguy, p. 33.
cannot be discriminated against. Access to these posts is supposed to be the same for
every citizen.30
Duty to be reserved (« obligation de reserve »)
Neutrality also implies restrictions to public officials’ freedom of opinion.
Surprisingly, this aspect is not codified by any statute. Nevertheless, it has serious
consequences for public officials at work and even during their free time.
Due to the lack of explicit statutory rules, the courts have developed a certain case
law defining the duty to be reserved as the obligation for the public official who publicly
expresses his opinion to be aware of the words and the form he uses in order not to harm
the interests of his service.31
In principle, to take on the apparel of the State does not mean that one’s freedom
of opinion is completely suppressed.32 According to article 6 of the General Civil Act,
public officials are free to express their opinion. However, this freedom of opinion is
limited according to the very circumstances of the case. The courts take into account a
series of indicators to determine whether a public official has failed to observe his duty
to be reserved: The obligation is particularly strict during the service. Public officials not
only have to be absolutely neutral, they also have to show a minimum of loyalty to the
Republican institutions and in certain positions event to the government.33
The duty for public officials to be reserved is less severe during their free time,
but it still applies. The rank and the responsibilities of the public official are important
criteria. Somebody assuming important responsibilities is requested to be more reserved
than somebody who just executes decisions taken by others. The circumstances under
which the statement is made and the public it is addressed to are also relevant factors. A
public official’s quality as trade union delegate or representative of the personnel does
not suppress his duty to be reserved, but loosens its constraints.34
According to the expression used by the courts, a public official does not respect
his duty to be reserved if the statement of his opinion is likely to harm the good working
of the administration.35 That is for example the case if a civil servant working in New
Caledonia claims publicly its independence.36
Still, there is an important exception to the duty to be reserved that is provided by
article 7 of the General Civil Service Act. This exception concerns the votes and the
30
Jean-Marie Auby, p. 301.
Vincent Potier & Vincent Péguy, p. 24.
32
According to an expression coined by Catherine Lecomte, cf. Vincent Potier & Vincent Péguy, p. 125.
33
Yves Gaudemet, p. 163.
34
Vincent Potier & Vincent Péguy, p. 25 with examples of court decisions.
35
Emmanuel Aubin, p. 149.
36
Administrative Court of Appeal in Paris, 21st of March 1996, Sako case.
31
opinions expressed by a public official who runs for elections or exercises his mandate in
a parliamentary assembly once he has been elected.37
Secular principle (« principe de laïcité »)
According to article 1 of the French Constitution of October 4th 1958, France is a
secular Republic. As a consequence, the State and its agencies observe strict neutrality in
matters of religion. This means concretely that public officials have to refrain from
expressing philosophical or religious opinions during their service. Proselytism is
prohibited as it is to openly bear religious signs. Discrimination against colleagues for
philosophical or religious reasons is forbidden.38
Although, in theory, public officials are granted the freedom of religion even
during their service,39 this freedom is severely restricted during their service, not to say
abolished, because of the secular principle which also has constitutional value. This is
particularly true for public education. The Council of State considers that public officials
are neither entitled to express nor even to indicate their religious beliefs.40 According to
the Council of State, there is no reason to make distinctions between different State
agencies. During their service, public officials have to entirely neutralize their religious
beliefs.41 Under no circumstances, they are allowed to wear an Islamic veil.42
However, there is an exception to this principle. It is locally limited and due to
particular historical reasons. The three departments Moselle (one of four departments of
Lorraine), Bas-Rhin and Haut-Rhin (the two departments of Alsace) were part of
Germany in 1905 when the 3rd French Republic and the Churches divorced. They became
French after 1918. In this part of France, the secular Republic is under the legal
obligation to guarantee religious education in public schools for the four recognized
denominations (Catholicism, Islam, Judaism and Protestantism). Public officials are
recruited especially for this purpose.43
On the other hand, public officials have to respect the beliefs and convictions of
the users of government services. In recent years, the courts had to decide to what extend
this principle is applicable to public education. This came to be known as the case law
relating to the “foulard islamique”.
Several female Muslim pupils had been excluded from their schools, because they
were wearing their veil. The school administration considered this behavior to be a
violation of school rules and especially a breach of the secular principle. The cases made
their way up to the Council of State. In its 1992 decision, the Council of State evokes
article 10 of the Declaration of the Rights of Man of 1789 and article 1 of the
37
Vincent Potier & Vincent Péguy, p. 26.
Vincent Potier & Vincent Péguy, p. 33.
39
Jean-Marie Auby, p. 302.
40
Council of State, legal opinion, 3rd of May 2000, Marteaux case.
41
Jean-Marie Auby, p. 302.
42
Vincent Potier & Vincent Péguy, p. 34.
43
Jean-Marie Auby, p. 303.
38
Constitution of October 4th 1958 according to which France is an indivisible, secular,
democratic and social Republic that respects all beliefs. The principle of secular public
education as an element of the neutrality of public administration in general implies the
respect of this neutrality by curricula and teachers on the one hand and of the pupils’
freedom of religion on the other hand. According to the Council of State, no pupil can be
discriminated against for her conviction or religious belief.44
In 1999, the Council of State confirmed these principles, but gave more details for
their daily implications. It decided that school rules can prohibit ostentatious religious
signs as elements of proselytism or discrimination. The “foulard islamique” is not
considered to be such a sign. However, the pupils can be requested to wear appropriate
clothes during physical education and technology classes. The Council of State
considered a veil not to be compatible with these classes.45
ee) Duty of professional discretion and professional secret (“obligation de
discretion professionnelle”, “le secret professionnel”)
The duty of professional discretion is defined by article 26 of the General Civil
Service Act and concerns any facts, information or documents that the public official gets
to know during his service or in relation with his service.46 Traditionally, the
administration has cultivated secrecy. Access to information laws have only been passed
in 1978 and 1979. However, beyond the cases defined by these laws, the good working of
the administration, the protection of its public officials and its users demand that a certain
degree of discretion be observed.47
In 1999, the Administrative Court of Appeals of Bordeaux approved a
disciplinary sanction against a public official. As a trade-union delegate, he had
participated in a trade-union meeting where he had mentioned in front of the cameras that
businesses delivering material to his hospital had difficulties in being paid. The Court
considered that he had got this information because of his professional activities and that
he had thus violated his duty of professional discretion.48
The duty to respect professional secrecy, on the other hand (“le secret
professionnel”) does not seek to protect the administration, but its users. The principle is
defined in article 26 of the General Civil Service Act according to which civil servants
have to respect professional secrets in compliance with the rules provided by the
Criminal Code.
Article 226-13 of the Criminal Code defines the violation as the revelation of a
secret information. It is even prohibited to reveal this information to any superior. Are
considered to be secret by nature any facts concerning private life. The fact that
44
Council of State, 2nd of November 1992, Kherouaa and Kachour case.
Council of State, 20th of October 1999, Ministry of Public Education ./. Mr. and Mrs. Ait Ahmad.
46
Vincent Potier & Vincent Péguy, p. 23.
47
Vincent Potier & Vincent Péguy, p. 24.
48
Administrative Court of Appeals of Bordeaux, 19th of July 1999, Alex César case.
45
everybody already knows them is completely irrelevant. The public official concerned is
in breach even if the victim agrees with his behavior.49
There are three categories of public officials that are bound by this professional
secret: The first group are medical doctors and ministers because of their state (“état”),
the second are social workers, nurses and midwifes because of their profession and the
third are public officials with certain missions (social help, protection of mothers and
infants, family planning etc.).50
Yet, there are situations where it is possible not to respect the professional secret
(a medical doctor communicating information about people being infected with
contagious or venereal diseases to administrations in charge of public healthcare). There
are even three cases, where it is a legal duty to reveal information despite the professional
secret: The protection of children against domestic violence demands that information be
communicated to the authorities in charge and a social worker can be requested to gather
information by order of a court and must then reveal it during a trial. Finally, article 2236 of the Criminal Code concerning the failure to render aid does not provide any
exception for public officials being bound by the professional secret.51
Moreover, article 40 of the Criminal Procedure Code obliges civil servants to
denounce felonies and misdemeanors they come to know about during their service.52
ff) Integrity (« devoir de probité »)
The General Civil Service Act does not contain any rule concerning moral
integrity. However, since honesty is the least one can expect of a public official, a
criminal condemnation is likely to be of some relevance for his professional situation. It
can be a justification of a disciplinary measure if the relevant facts committed during his
service or in his private life are harmful to the reputation of the service.53
But integrity has a much larger meaning. More than ordinary citizens, public
officials are requested to be particularly respectful of moral obligations. Public officials
must not only be polite during their service, but they also have to avoid any scandal in
their private life that is likely to have a negative effect on their administration.54 A police
officer can thus be revoked if he beats his wife and seriously threatens other guests
during a wedding ceremony.55
gg) Disinterested service (« exercice désintéressé »)
49
Vincent Potier & Vincent Péguy, p. 45.
For more details cf. Vincent Potier & Vincent Péguy, p. 46.
51
Vincent Potier & Vincent Péguy, p. 47.
52
Emmanuel Aubin, p. 150.
53
Vincent Potier & Vincent Péguy, p. 26.
54
Didier Jean-Pierre, p. 55.
55
Administrative Court of Appeals Bordeaux, 11th of January 1996, Mr. C. case.
50
Financial integrity is an important element of the « déontologie » of public
officials. According to minimum moral standards, public officials are not allowed to
appropriate public money, to use it for private purposes or to waste it. But they also have
to be disinterested by private money.
Public officials and public money
It is self-evident that public officials are not entitled to appropriate public money.
Such a behavior is prohibited by general criminal law (larceny, fraud, embezzlement
etc.). In addition, the French Criminal Code defines offenses that can either exclusively
be committed by public officials or where the fact that the perpetrator is a public official
is considered to be an aggravating cause.
Articles 432-15 and 432-16 of the Criminal Code prohibit public fund
embezzlement (“détournement de fonds”). Public officials risk between one and twenty
years in prison. This crime can either be committed intentionally or by negligence. 56
Furthermore, article 432-10 of the Criminal Code sanctions overcharging of taxes
(“concussion”) which is defined as a public official receiving, demanding or ordering to
perceive as a fee or contribution, as a tax or fiscal charge an amount that is either not due
or a sum exceeding the amount due. Compared to bribery, overcharging of taxes thus
defined often implies that the public official has indeed just forgotten his duty to be
disinterested. He is guilty even if he did not ask for the money, if he did not get any
personal advantage or if he intended to act in his administration’s interest.57
In addition to appropriation, public officials are not allowed to use public money
for private purposes. This implies the use of public means such as personnel, equipment,
photocopies and service cars. However, this aspect is not well defined by any law or
regulation.58
In order to guarantee a certain efficiency of State agencies, public officials are
forbidden to waste public money. Article 432-14 of the Criminal Code prohibits
favoritism (“favoritisme”), because it is a breach of equality and harmful to the
administration’s budget.59
Public officials and private money
It goes without saying that public officials are not allowed to accept donations by
the people that they are supposed to serve. Neither is a superior entitled to receive gifts
for making a decision that promotes another public official’s career.60 Article 432-11 of
56
Jean-Marie Auby, p. 309.
Jean-Marie Auby, p. 309.
58
Jean-Marie Auby, p. 310.
59
Vincent Potier & Vincent Péguy, p. 72.
60
Jean-Marie Auby, p. 311.
57
the Criminal Code prohibits corruption and according to article 462-11 the acceptance of
benefit by public officials (“traffic d’influence”) is unlawful.
As a consequence, a public official is not entitled to demand or to agree directly
or indirectly to accept gifts, promises, donations, presents or other advantages of any
kind: either to commit or not to commit an act related to or facilitated by his mission or to
misuse his real or supposed influence in order to obtain distinctions, employments,
contracts or a favorable decision of any other kind by a public authority or
administration.
Public officials thus cannot accept gifts, travels and invitations whose value
exceed a symbolic value.61 In a larger sense, public officials are prohibited to take any
action that could harm their independence.62
Another aspect of this general obligation is defined by article 25, para. 3 of the
General Civil Service Act according to which civil servants cannot have, neither
personally nor through another person, any interests being harmful for his independence
in a company under the control of or related to his agency (“intérêts de nature à
compromettre leur indépendance”).
A decree of 1991 defines more precisely the scope of this prohibition. In addition,
article 432-13 of the Criminal Code prohibits public officials from taking illegal interest
(“prise illégale d’intérêts”) as defined above and provides sanctions such as a fine or
imprisonment up to two years.63 The Council of State interprets the duty to be
disinterested quite severely and does not take into account the rank of the public official
concerned.64
« Pantouflage »
Disinterested service in a more general sense implies that public officials have to
be independent vis-à-vis private interests that they are supposed to control. However, the
French private sector has always had a strong tendency to employ former civil servants.65
This migration of public officials to the private sector has been called “pantouflage”
(“pantoufles” being slippers).66 It is due to the fact that French civil servants are often
highly qualified in areas that are relevant to the private sector, since the French publics
sector traditionally plays an important role in the economy.
However, the possibility to migrate to the private sector is likely to cause conflicts
of interest between the civil servant’s duties of “déontologie” and the private interests.
61
Vincent Potier & Vincent Péguy, p. 70.
Emmanuel Aubin, p. 140.
63
Emmanuel Aubin, p. 139.
64
Emmanuel Aubin, p. 140.
65
Jean-Marie Auby, p. 312.
66
For more details about the origin of the word and the history of “pantouflage” cf. the excellent article by
Raphaël Piastra, Du Pantouflage, in: Revue de Droit Public 2000, p. 122-151.
62
On the other hand, it is a good way for public officials to diversify their professional
experience.67
As a consequence, the law provides certain limits to the possibility of
“pantouflage” without prohibiting it.
The “pantouflage” can first of all be temporary. Until 2002, it was possible to
leave the civil service for a period of three years with an eventual prorogation for another
three years according to the former article 45 of a decree of 1985 in order to work in the
private sector.68 This possibility has been suppressed after the publication of a report by
the Central Service for the Prevention of Corruption (“Service Central de Prévention de
la corruption”) in 2000 and a legal opinion rendered by the “Déontologie” Commission
for
State Civil Service (“Commission de Déontologie de la Fonction Publique de
l’Etat”) that same year. But it is still possible to leave the Civil Service temporarily for
strictly personal reasons or to create or to take over a private business.69
The “pantouflage” can also be definitive. But there are serious limitations. A
decree of 1991 defines the private activities that a civil servant cannot chose after leaving
the civil service. Civil servants may not work for a company of the private sector that was
under the control of the agency concerned or subsidized by it. They have to wait five
years before doing so.70
Since 1991, several laws and regulations have created new procedural and
substantive rules. By passing a law in 1995 creating three “Déontology” Commissions
(“Commissions de Déontologie”), one for each of the existing civil services, the State
intends to control more systematically the phenomenon of “pantouflage”.
The “Commission de Déontologie de la Fonction Publique de l’Etat” for example
publishes a report about its activities every year.71 Its consultation is obligatory. The
statistics, however, are somewhat surprising. In 2001, on a total of 1,199 cases altogether,
in only 2 % of them, the Commission concluded that the migration to the private sector
was incompatible with “déontologie”.72 In the years before, the situation had been
similar.73
hh) Elements of “déontologie” referring to modern and transparent
administration
67
Jean-Marie Auby, p. 312.
Jean-Marie Auby, p. 191.
69
Jean-Marie Auby, p. 313.
70
Jean-Marie Auby, p. 313.
71
Cf. Commission de Déontologie de la Fonction Publique de l’Etat, 5e Rapport d’Activité 1999, Paris : La
Documentation Française, 2000 ; 6e Rapport d’Activité 2000, Paris : La Documentation Française, 2001
and 7e Rapport d’Activité 2001, Paris: La Documentation Française, 2002.
72
Commission de Déontologie de la Fonction Publique de l’Etat, 7e Rapport d’Activité 2001, p. 30.
73
Commission de Déontologie de la Fonction Publique de l’Etat, 5e Rapport d’Activité 1999, p. 21 and 6e
Rapport d’Activité 2000, p. 26.
68
The aspects of “déontologie” analyzed until now can be considered to be classical
ones. But the concept evolving, it becomes broader and also includes values and rules
that are linked to the idea of modernization of the administration rather than to a certain
behavior of public officials. That is why we will just provide a brief survey of these
aspects.
Rule of law (« respect de la légalité de l’action administrative »)
It is self-evident that public officials have to respect the law. They have to act in
compliance with all relevant European, constitutional and international rules, statutory
law, regulations and case law (“bloc de légalité administrative”).74
The number of laws that intend to improve the relationship between the
administration and the public is increasing as we will see below.
Transparency (« obligation de transparence »)
According to article 27 of the General Civil Service Act, the administration has to
satisfy demands of the public concerning information in compliance with the professional
secret and professional discretion. The public is more and more frequently consulted
before the administration makes a decision.75
In addition, the French Freedom of Information Act (“Loi portant diverses
mesures d’amélioration des relations entre l’administration et le public et diverses
dispositions d’ordre administratif, social et fiscal”) of 1978 gives citizens to right to have
access to administrative documents.76
Furthermore, individual administrative acts have to be motivated according to a
law enacted in 1979 (“Loi relative à la motivation des actes administratifs et à
l’amélioration des relations entre l’administration et le public”).77 Moreover, article 4 of
the law concerning citizens’ rights in their relation with the administration (“Loi relative
aux droits des citoyens dans leurs relations avec les administrations”) entitles them to get
to know the name, given name, grade and the professional address of the public official
dealing with his request.78
3. Sanctions of violations
74
Didier Jean-Pierre, p. 63 et seqq.
For more details cf. Vincent Potier & Vincent Péguy, p. 50.
76
Vincent Potier & Vincent Péguy, p. 52.
77
Vincent Potier & Vincent Péguy, p. 53.
78
Vincent Potier & Vincent Péguy, p. 54.
75
Having analyzed the existing duties of « déontologie » for public officials in
French administrative law, we will very briefly have a look at how breaches of these
duties are sanctioned. Three different kinds of sanctions can be distinguished:
administrative liability (“responsabilité administrative”), criminal liability
(“responsabilité pénale”) and disciplinary sanctions (“sanctions disciplinaires”).
a) Administrative liability (“responsabilité administrative”)
The concept of administrative liability is mainly based on the idea of misconduct
(“faute”).79 Although there can be cases of administrative liability that are not directly
related to any misconduct (damage caused by an administrative activity with an inherent
special risk, accident at work, damage generated by public works or special and abnormal
damage caused by unequal discharge of public burdens), it still is a key concept.
Misconduct can be defined as the breach of preexisting duties.80 As far as public
officials are concerned, the latter can of course be duties of “déontologie”. In this case,
the misconduct will generally “reveal Man with his weaknesses, his passions and his
negligence” according to the expression used by the courts and thus must be qualified as
a personal misconduct (“faute personnelle”) entailing the public official’s personal
liability.81
If the fact that generated the damage is impersonal, if it “reveals an administration
that is more or less subject to errors”, the misconduct is considered to be a “faute de
service” (administrative failure), which entails the liability of the administration.82 “Faute
personnelle” and “faute de service” can be accumulated. In such a case, the victim can
sue the administration. If the personal misconduct cannot be disconnected from the
service, the administration can have recourse against the public official concerned.83
b) Disciplinary sanctions (“sanctions disciplinaires”)
Disciplinary sanctions can be imposed on public officials by their superiors. This
principle is defined by articles 29 and 30 of the General Civil Service Act. It can coincide
with criminal sanctions, but its nature is different, as it is not considered to be a
jurisdictional act.84 Nevertheless, more and more rules of criminal procedure are applied
to the disciplinary procedure.85
79
The fact that agencies are liable according to administrative law and not according to civil law is
generally considered to be the starting point of French administrative law in the second half of the 19 th
century. The leading case is Tribunal des Conflits (Court of Arbitration), 8 th of February 1873, Blanco case.
80
Gérard Cornu, Vocabulaire Juridique, p. 376.
81
Gérard Cornu, p. 377.
82
Gérard Cornu, p. 377.
83
Vincent Potier & Vincent Péguy, p. 63.
84
Yves Gaudemet, p. 195.
85
Yves Gaudemet, p. 198.
Yet, there is no statutory enumeration of different types of misconduct as there is
in Criminal Law. Article 29 of the General Civil Service Act simply recalls that “any
misconduct (“faute”) by a civil servant during or on the occasion of his service can lead
to disciplinary measures without prejudice to any criminal condemnations”. Practically
speaking, misconduct in the sense of this provision is generally the violation of one of the
duties of “déontologie” mentioned above.86
Before a disciplinary sanction is imposed, the joint disciplinary boards (“Conseils
de Discipline”) have to be consulted. The superior is not bound by their decision, but has
to justify himself vis-à-vis the boards if he does not follow their advice.87
c) Criminal liability (“responsabilité pénale”)
Criminal courts do not take into consideration whether the incriminated fact is a
« faute personnelle » or a « faute de service » or even if disciplinary sanctions have been
imposed. They decide whether felonies or misdemeanors as defined by the Criminal
Code have been committed.88
As we have already seen before, the French Criminal Code provides several
articles that are relevant in the context of “déontologie”. In many cases, the fact that the
perpetrator is a public official is considered to be aggravating and entails more severe
punishments.
4. The existing “codes de déontologie”
This brief description of the French concept of “déontologie” and its legal
context shows that its sources and elements are divers and heterogeneous. There is no
proper source or framework of “déontologie” which is due to the complexity of the
concept, but also to the diversity of the civil service.89
“Déontologie” is a model for personal behavior and collective action. As such, it
is ruled by various provisions whose ultimate goal is not necessarily and not explicitly to
promote the idea of “déontologie”. The coexistence of these different sources does not
make it easier for public officials to know their duties.90 “Codes de déontologie” are
expected to rationalize the approach.
As a consequence, there is a multitude of different texts attempting to assemble
the different elements of “déontologie” in a single document. They have different names
such as “Charte des Services Publics” (1992) or “Guide Déontologique”, but they
generally have in common that they are so-called “soft law” or “droit à l’état gazeux”
86
Yves Gaudemet, p. 200.
Yves Gaudemet, p. 203.
88
Vincent Potier & Vincent Péguy, p. 63.
89
François Chambon & Olivier Gaspon, p. 43.
90
François Chambon & Olivier Gaspon, p. 43.
87
(“gaseous law”), which means that they are the result of a participatory approach, but
without any binding caracter.91
a) The Code of Medical Ethics
The first real “Code de Déontologie” in France was enacted in 1947.92 It is the
“Code de Déontologie Médicale” (“Code of Medical Ethics”).93 Its present version was
enacted as decree no. 95-1000 on September 6th 1995. It is composed of five parts
(“Titres”): General duties of doctors, duties vis-à-vis the patients, relationship between
doctors themselves and with the members of other professionals in the health sector, the
practice of the profession, miscellaneous provisions.
Although the medical sector is part of the French Civil Service, most of the
provisions of this Code of Ethics deal specifically with problems that are proper to
healthcare. As a consequence, we will not analyze all of its provisions in detail and just
recall some general ideas.
According to its article 1 para. 3, disciplinary sanctions can be imposed by the
medical associations and their disciplinary tribunals (“juridiction ordinale”) for a breach
of the duties defined by the code. The first instance is a Regional Council (“Conseil
Régional de l’Ordre”) with the possibility to appeal to the Disciplinary Section of the
National Council (“Section Disciplinaire du Conseil National de l’Ordre”). Instance of
cassation is the Council of State (“Conseil d’Etat”).
This provision is not banal, since it indicates that the code is not just “soft law”,
but can be enforced by using the traditional disciplinary measures that we have described
before.
According to article 3, medical doctors have to respect, under any circumstances,
the principles of morality, integrity and self-devotion.
Article 4 repeats the professional secret and its implications. Article 7 reminds
medical doctors of the fact that they are not allowed to discriminate against somebody for
reasons related to their origin, morals, marital status or their ethnical, national or racial
affiliation.
Article 26 deals with the question of secondary activities that are prohibited if
they are incompatible with the professional independence and dignity of a medical
doctor. The duty to be reserved is evoked by article 31.
According to article 35, medical doctors are obliged to provide loyal information
to their patients. Finally, the duty of personal service is mentioned by article 69.
In addition to these general elements of “déontologie” that we have already
analyzed before, the code contains a large number of provisions concerning very specific
91
Didier Jean-Pierre, p. 5.
Didier Jean-Pierre, p. 4.
93
Cf. http://www.conseil-national.medecin.fr/CNOM/Deontologie.nsf/V_DE/$first, where the text of the
Code can be found. There is an online commentary to each of its 112 articles.
92
questions of the health sector. However, this short survey may show the advantage of
having a Code of ethics for a particular profession: Since the most important rules
concerning a particular profession are contained in one single code, professionals will
find it easier to keep informed about them. They no longer face a jungle of European,
international and constitutional rules, statutes, regulations and case law.
b) The Codes of Ethics for the Security Sector
Another Code of Ethics relating to public officials was enacted in 1986 by decree
no. 86-592. It is the “Code de Déontologie de la Police Nationale”.94 It is actually the first
of a series of Codes of Ethics to be passed in the security sector. That is certainly not a
pure coincidence as this branch of the executive is particularly vulnerable in matters of
ethics.
There is a project for a “Code de Déontologie de la Police Municipale” (Code of
Ethics for Municipal Police) adopted on the 9th of September 2002.95 It is clearly
inspired by the existing “Code de Déontologie de la Police Nationale” of 1986. Despite
the different numbering of the articles, the textual differences are only due to the different
cognizances of both institutions.
In addition, a « Code de Déontologie de l’Administration Pénitentiaire » (Code of
Ethics for Prison Administration) is projected.96 To a certain extend, this draft is also
inspired by the “Code de Déontologie de la Police Nationale”, but it contains additional
provisions concerning specific questions of Prison Administration. Moreover, it is
somewhat more detailed. The problem of alcoholism and drug usage by prison personnel
for example can be considered to be a question of dignity and exemplary behavior (cf.
article 7 of the Code of National Police Ethics). However, article 20 of the draft Code of
Ethics for Prison Administration explicitly prohibits the consumption of “substances
likely to alter their behavior or judgment”.
aa) The Code of Ethics for the National Police
As the “Code de Déontologie de la Police Nationale” serves as an example, we
will analyze it more in detail.
94
A short introduction to police ethics and the text of the code are available at http://www.prefecturepolice-paris.interieur.gouv.fr/connaitre/textes_fondamentaux/code_de_deontologie.htm. The text is also
available at http://www.legifrance.gouv.fr/WAspad/UnCode?code=CDPOLIC0.rcv or at http://www.snopsnapc.fr/codeont.htm.
95
The text of this code is available at http://www.police.online.fr/texte/deontologie.html. For a comment on
this draft cf. http://www.commission-droitshomme.fr/binTravaux/AffichageAvis.cfm?IDAVIS=671&iClasse=1.
96
The text of the draft is available at http://www.prison.eu.org/article.php3?id_article=72. For a comment
on this draft cf. http://www.commission-droitshomme.fr/binTravaux/AffichageAvis.cfm?IDAVIS=593&iClasse=1.
However, legal scholars in general do not seem to have taken any notice of this
Code. A single article at his subject has been published more than a decade ago.97 At the
same time, an Annotated Code of Ethics for the National Police has been issued by two
police commissioners.98 Even as far as practice is concerned, the Code did not have the
impact that its authors had possibly intended.99
With some delay, the « Code de Déontologie de la Police Nationale » had been
enacted by decree on 18th of March 1986. It was part of a larger project of police
modernization undertaken by a law of 7th of August 1985 whose article 4 assigned the
government to the task of enacting by decree in Council of State a Code of Ethics for the
National Police until 31st of December 1985.
It was conceived as an answer to criticism against the police forces and inspired
by drafts of the Parliamentary Assembly of the Council of Europe in 1979.100 However, it
was a “codification à droit constant” (codification of existing rules).101
This idea is confirmed by the legal basis of the decree. The law of 1985 is not an
enabling act, as the procedure of article 38 of the French Constitution has not been
respected. It can thus not be considered to be a legal foundation of the Code. But this
legal authorization would be necessary since the Code defines rights and duties of civil
servants that can only be determined by a statute according to article 34 of the French
Constitution and not by a decree.102
Nevertheless, this codification also intended to remind the police forces of a
threshold of pain for the public, a moral minimum standard.103
As far as the content of the Code is concerned, the title “Code de Déontologie” is
justified. Having already analyzed the concept of “déontologie” before, we will not be
surprised to find again its key elements that we are now familiar with.
The « Code de Déontologie de la Police Nationale » is devided in four parts
(« titres »).
bb) Preliminary Part
The preliminary part comprises six articles dealing with general questions such as
the task of the National Police (article 1), the rule of law (article 2), the conditions for
becoming a member of the National Police (article 3), hierarchy (article 4), the scope of
the Code (article 5) and the important provision in article 6 stating that “any breach of the
97
Béatrice Thomas-Tual, Le Code de Déontologie de la Police Nationale : Un Texte passé inaperçu, in :
Revue du Droit Public, volume 107 (1991), p. 1385-1405.
98
Sophie Porra & Claude Paoli, Code Annoté de Déontologie Policière, Paris : LGDJ, 1991.
99
Sébastien Gouhier, La Déontologie de la Sécurité sous Surveillance d’une Autorité Administrative
Indépendante : Une Loi pour rassurer les Citoyens ?, in : Revue Française du Droit Administratif 2002, p.
384-398.
100
Béatrice Thomas-Tual, p. 1387.
101
Chambon, François & Gaspon, Olivier, p. 144.
102
Béatrice Thomas-Tual, p. 1389.
103
For details cf. Béatrice Thomas-Tual, p. 1388.
duties defined by this Code can lead to disciplinary sanctions without prejudice to any
punishment provided by the Criminal Code”.
Article 6 shows at the same time the intention of the authors of the Code to codify
binding rules and its failure as far as enforcement is concerned. In case of disciplinary
sanctions, the courts tend to neglect the provisions of the “Code de Déontologie” and
continue referring to the other sources of “Déontologie” that we have already analyzed
before.
cc) First Part: General duties of the members of the National Police Forces
The first part of the Code (“Titre Premier”) deals with the general duties of the
members of the National Police Forces (“Devoirs Généraux des Fonctionnaires de la
Police Nationale”) and contains six articles.
Article 7 refers to several key elements of “Déontologie”. According to its
paragraph 1 “Members of the police forces have to be loyal vis-à-vis the Republican
institutions. They are honest and impartial; they do not swerve from their dignity.” As a
consequence we find again the duties of loyalty, integrity, neutrality and dignity that we
have already analyzed before.
“Serving the public, members of the national police forces show exemplary
behavior in their relations with the citizens. They are respectful of people regardless of
their nationality, origin, social status and their political, religious or philosophical
convictions” according to paragraphs 2 and 3 of article 7. These rules of conduct are
linked to the duty to be impartial, the duty to be neutral and especially the prohibition of
any discrimination as we have defined them before.
According to article 8, members of the National Police Forces owe assistance to
citizens that need their help and have to protect them. They must prevent acts that could
disturb public order. This article reminds civil servants of the duties that are already
defined by article 223-6 of the French Criminal Code and that are not only applicable to
ordinary citizens.104
Article 9 concerns the use of force and strictly limits it by the principle of
proportionality. However, by doing so it simply copies preexisting legal rules.105 Article
10 is also specific to police activity and repeats provisions of the Criminal Code and the
Code of Criminal Procedure.106
The freedom of opinion for members of the National Police Forces is defined in
article 11. As we have seen before. It is recognized in principle, but limited by their duty
to be reserved and the rules concerning professional discretion and the professional
secret.107
104
Béatrice Thomas-Tual, p. 1399.
Béatrice Thomas-Tual, p. 1400.
106
Béatrice Thomas-Tuas, p. 1400 et seq. For more details cf. Sophie Porra & Claude Paoli, p. 99 et seqq.
107
Béatrice Thomas-Tuas, p. 1401, Sophie Porra & Claude Paoli, p. 111 et seqq.
105
Finally, article 12 evokes another preexisting rule of the civil service and of
Criminal law, according to which a superior has to protect his subordinates against any
kind of aggressions.108
dd) Second Part: Respective Rights and Duties of Members of the National
Police Forces and their Authorities
The second part of the Code also contains six articles and enumerates respective
rights and duties of members of the National Police Forces and their authorities (“Droits
et Devoirs Respectifs des Fonctionnaires de Police et des Autorités de Commandement”).
Articles 13 and 14 define the duty to obey. Articles 15 and 16 also concern
orders. In terms of “déontologie”, article 17 seems to be more relevant.110 According to
this provision, the non-execution of an order is legal if two conditions are fulfilled: the
order has to be obviously illegal and particularly harmful to a public interest.111 In this
regard, the Code adds nothing to the preexisting rules that we have already analyzed.
Finally, according to article 18, member of the National Police Forces have to give an
account of the execution of the orders they have received.112
109
ee) Part three: The Control of the Police
The third and last part of the Code only contains two articles dealing with the
control of the National Police Forces (“Du Contrôle de la Police”). Article 19 enumerates
different means of control by various institutions (Court’s Indictment Division if Police
act as Criminal Investigation Department (“Police Judiciaire”), control by their superior,
the Inspectorate-General of the Administration (“Inspection Générale de
l’Administration”) and the Inspectorate-General of the National Police Forces
(“Inspection Générale de la Police Nationale”).113
Finally, article 20 assigns the execution of this decree to the Minister for Home
Affairs and Decentralization.114
ff) The « Commission Nationale de Déontologie de la Sécurité »
108
Béatrice Thomas-Tual, p. 1401 et seq.
Béatrice Thomas-Tual, p. 1402.
110
Sophie Porra & Claude Paoli, p. 153 et seqq.
111
Béatrice Thomas-Tual, p. 1402 et seq.
112
Sophie Porra & Claude Paoli, p. 167 et seqq.
113
Sophie Porra & Claude Paoli, p. 176 et seqq.
114
Sophie Porra & Claude Paoli, p. 195 et seqq.
109
In order to improve the enforcement of “Déontologie” among the security forces,
the law no. 2000-494 of June 6th 2000 has created a new institution that reveals the
ambiguity of the concept between legally binding rules and purely moral obligations.115
The National Ethics Commission for the Security Forces (« Commission
Nationale de Déontologie de la Sécurité ») is assigned the control of the respect of
professional rules by Security Forces. The latter are defined as professionals – from the
public or the private sector – who can exercise constraint on citizens in order to restore or
to uphold security.116 It does not only control public officials.117
However, the Commission is denied any power of decision, but it has a large
power of investigation. It exercises its control without prejudice to the existing
procedures. Although the Government, in the draft presented to the Parliament, has
expressed its hope that the Commission’s activity would create a set of rules of ethics,
this is not likely to happen. As we have seen before, the rules already exist and are
already applied and interpreted by various institutions.
The Commission, however, is conceived as a purely moral authority
(“magistrature morale”).118 According to article 11 of the law, it can only invite the
Government to propose changes of the legislation that the Parliament has to pass. Rules
of ethics for security forces can only be binding if they are defined by law according to
article 34 of the Constitution and not by decree according to article 37 of the
Constitution.119
In addition, the Commission’s activity interferes with the work of the courts that
have to provide justice in the very same cases.120
The Commission’s primary function will probably be the information of the
public. It issues an annual report to the President of the Republic and to the Parliament,
but its real addressee is undoubtedly the public.121
General Bibliography:
Aubin, Emmanuel, Droit de la Fonction Publique, Paris : Gualino Editeur, 2001.
Auby, Jean-Marie e. a., Droit de la Fonction Publique, Paris : Dalloz, 4th Edition 2002.
Chambon, François & Gaspon, Olivier, La Déontologie Administrative, Paris : Libraire
Générale de Droit et de Jurisprudence, 1996.
Dicey, A. V. , Droit Administratif, in: Introduction to the Study of the Law of the
Constitution, London: Macmillan and Co., 8th Edition 1915, p. 324-401.
115
Sébastien Gouhier, p. 384.
Sébastien Gouhier, p. 384.
117
Sébastien Gouhier, p. 388 et seq.
118
Sébastien Gouhier, p. 390.
119
Sébastien Gouhier, p. 391.
120
Sébastien Gouhier, p. 391 et seq.
121
Sébastien Gouhier, p. 392.
116
Gaudemet, Yves & De Laubadère, André, La Fonction Publique, Traité de Droit
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