Incopatibility of office

The incompatibility of office held by a public official with the pursuit of gainful activity and the prohibition of membership and activities, which the IPCA asserts marginally differently between professional and non-professional officials, are both measures for the prevention of corruption and the prevention of the conflict of interest. Their purpose is to ensure the independent fulfilment of the functions set out by the Constitution and the law.

It is important to emphasise that the provisions of the IPCA which regulate the incompatibility of office and the prohibition of membership and activities are subject to subsidiary application: the Commission may establish whether the incompatibility of office has occurred only for the officials to whom no other Act regulating the incompatibility of office applies, and for the officials for whom the law regulating the incompatibility of their office refers to the use of the provisions of another Act, which includes the IPCA.

Rstrictions applicable to professional officials

The IPCA prohibits professional officials from engaging in any professional or other activity aimed at generating income or proceeds, and defines the exceptions to this prohibition. Under the conditions stipulated in the IPCA, professional officials may engage in pedagogical, scientific, research, artistic, cultural, sports and publishing activities, and manage a farm and their own assets. An official may engage in these activities (with the exception of sports and publishing activities, and managing a farm and their own assets) if they obtain permission from their employer in accordance with applicable legislation.

In exceptional cases, the Commission may grant permission on the professional official’s motion to perform a professional or other activity aimed at generating income which is otherwise prohibited. In deciding on the mater, the Commission takes into account the public interest and the level of risk the performance of the activity poses to the objective and impartial discharge of the duties of the office or to its integrity. When forbidden by another Act or if the professional official seeks to obtain income from the body in which they hold office, the permission shall not be granted by the Commission.

The IPCA further stipulates that a professional official must not be a member of a company, economic interest grouping, cooperative, public institute, public fund, public agency, or other entity governed by public or private law, or engaged in management, supervision or representation activities in these entities, the exceptions being societies, institutions, and political parties.

Restrictions applicable to non-professional officials

While there is a total ban on membership and activities in effect for professional officials in the above cases, the prohibition applies to non-professional officials only for those entities (companies, public institutes, cooperatives, etc.) in which the duties of their office include direct supervision of their work.

Special prohibitions for non-professional mayors and deputy mayors

The IPCA includes a special provision on the (non)compatibility of office of non-professional mayors and deputy mayors, which are otherwise classified as non-professional officials. Essentially, the same prohibition applies to non-professional mayors and deputy mayors as it does to professional officials, i.e. a non-professional mayor or deputy mayor may not be a member of a public institute, public fund, public agency, or other entity governed by public or private law, or be engaged in their management, supervision or representation, if the entity governed by private law is a holder of public authority or is a public service provider. Since 23rd April 2011, when the modified IPCA-A entered into force, this prohibition applies only in cases when a non-professional mayor or deputy holds their office in a municipality which is related to the said entities in terms of founding, ownership, supervision, or finance.

An official who pursues a gainful activity or is engaged in an entity’s representation activity which is incompatible with their office on the date of taking office, must cease to perform this gainful activity or representation activity no later than within 30 days of the date of his election or appointment or the approval of the mandate. An official who is on the date of taking office a member of a representation, management or supervision body in an entity governed by public or private law, and this membership is not compatible with their office, must immediately (i.e. directly after taking office and preferably on the same day or in the following few days) submit their resignation or make a request to have their membership terminated. Their membership must be terminated within 30 days of the date of their appointment to office.

Provisions of the IPCA

Article 26

(Incompatibility of office and exceptions)

(1) A professional official holding a public office may not be engaged in any professional or other activity aimed at generating income or proceeds.

(2) Notwithstanding the provision of the preceding paragraph, professional officials may engage in pedagogical, scientific, research, artistic, cultural, sports and publishing activities, manage a farm and their own assets, unless otherwise provided by another Act. An official who obtains permission from his employer or enters into a contract to engage in one of the aforementioned activities, except in the cases of sports and publishing activities and of managing a farm or one’s own assets, shall notify the Commission of this in writing within eight working days of the commencement of the activity and enclose with the notification the employer’s permission and the contract under which he may perform the activity or profession.

(3) The Commission may within fifteen working days of receipt of the notification referred to in the preceding paragraph initiate a procedure for assessing the incompatibility of office if it considers that the performance of the activity, given the actual scope and nature of the activity in question and the office held by the professional official, is likely to present a disproportionate risk to the objective and impartial discharge of the duties of the office, or jeopardise its integrity. In this case, the Commission may issue a decision prohibiting the official from performing an additional activity or imposing conditions or restrictions on the official that must be complied with when performing the activity.

(4) Unless otherwise provided by another Act, the Commission may allow a professional official to perform a professional or other activity aimed at generating income, taking into account the public interest and the level of risk the performance of the activity poses to the objective and impartial discharge of the duties of the office or to its integrity. If a professional official wishes to obtain income from the body in which he holds office, the Commission shall not issue an authorisation. If the Commission issues an authorisation, it may impose conditions and limitations on the official that must be complied with when performing another activity.

(5) If the Commission finds that the official has not complied with the conditions and restrictions imposed by the decision referred to in paragraph 3 or the authorisation referred to in the preceding paragraph, or that the official performs a professional or other activity in a manner that interferes with the objective and impartial discharge of the duties of his office, it shall issue a decision revoking the authorisation. The official shall immediately or no later than after the decision on revocation of the authorisation has become final cease to perform the professional or other activity in question.

(6) In an administrative dispute against the Commission’s decision on the revocation of the authorisation, the Administrative Court shall give priority to the matter.

(7) If the official does not cease to perform the professional or other activity after the decision on the revocation of the authorisation has become final, the Commission shall inform the body responsible for the appointment and dismissal of the official. The body shall take appropriate measures against the official within 30 days in accordance with the law and its integrity plan and shall inform the Commission of this.

Article 27

(Prohibition of membership and activities)

(1) A professional official may not be a member of a company, economic interest grouping, cooperative, public institute, public fund, public agency, or other entity governed by public or private law, or engaged in management, supervision or representation activities in these entities, the exceptions being societies, institutions and political parties.

(2) A non-professional official may not be a member of any entity governed by public or private law referred to in the preceding paragraph, or engaged in management, supervision or representation activities in these entities if the duties of his office include direct supervision of their work.

(3) The prohibition under paragraph 1 of this Article regarding the membership of public institutes, public funds, public agencies and other entities governed by public or private law, and the performance of management, supervision or representation activities in these entities, if the entity governed by private law is a holder of public authority or a public service provider, shall also apply to non-professional mayors and deputy mayors who hold their office in the municipality that is related to the entities referred to in this paragraph in terms of founding, ownership, supervision and finance.

Article 28

(Termination of activity, office or membership)

(1) An official who, prior to taking office, performed an activity or held an office that is incompatible with his office under this Act or is contrary to the preceding Article shall cease to perform the activity or hold office no later than within 30 days of the date of his election or appointment or the approval of his mandate.

(2) An official who, prior to taking office, was a member of bodies whose membership is incompatible with his office under this Act or is contrary to the preceding Article, shall immediately submit his resignation or make a request to have his membership terminated; the membership shall be terminated within 30 days of the date of his appointment to office.

Article 29

(Warning by the Commission and the consequences of a failure to comply)

(1) If an official does not cease to perform an activity, hold membership, or hold an office that is incompatible with his office under this Act within the time limit referred to in the preceding paragraph, the Commission shall warn the official and set the time limit by which the official must cease to perform the activity or hold office. The time limit set by the Commission may not be shorter than 15 days or longer than three months. The Commission shall warn the official who, after taking office, commences an activity, gains membership or takes an office which is incompatible with his office under this Act on incompatibility and shall set the time limit by which the official must eliminate the incompatibility in question. This time limit may not be shorter than 15 days or longer than three months.

(2) If the Commission establishes that the official continues to perform the activity, hold a membership, or hold an office after the time limit set by the Commission has expired, it shall inform the relevant authority competent to propose or commence a procedure for the removal of the official from office. The competent authority shall inform the Commission of its final decision.

(3) The provisions of the preceding paragraph do not apply to directly elected officials. If the Commission establishes that the facts referred to in the preceding paragraph in connection with directly elected officials are true then it shall inform the public of its findings and publish them on its website.