Analysis
1 October 2021

A future bill to improve France’s anti-corruption framework

An analysis of the future bill to improve France’s anti-corruption framework for the International Bar Association.

 

The bill has since been published on 27 October, you can read the revised analysis of the Gauvain anti-corruption bill here.

 

Five years on from the enactment of the Sapin 2 law, the ambition of which is to ‘bring French legislation to best European and international standards and to contribute to a positive image of France in the world’,[1] an evaluation of its effectiveness was carried out by a commission led by two Members of Parliament (MPs) Raphaël Gauvain and Olivier Marleix. The commission published a report listing 50 recommendations for improving France’s anti-corruption endeavours.[2] The two MPs then decided to convert this into a draft bill which will consider some of the recommendations listed in the report. This draft bill, which has not yet been published, is currently under government review before its submission to parliament which is expected to take place in November 2021. The main areas for improvement identified by the MPs, which should be the subject of the draft bill, are outlined below.

 

Revamping the French Anti-corruption Agency and its missions

The Sapin 2 law introduced the French Anti-corruption Agency (AFA), an administrative service, headed by an independent magistrate, with national jurisdiction and responsible for monitoring the existence and effectiveness of anti-corruption programmes put in place by government agencies, local authorities and large companies and the implementation of injunctions issued by its Sanctions Commission. The AFA investigates potential breaches of the obligations imposed by the Sapin 2 law relating to anti-corruption measures and the AFA’s Sanctions Commission can impose fines and issue injunctions.[3] The AFA also has a mission of administrative coordination which involves the centralisation and dissemination of information to help legal entities that are subject to the law implement measures for preventing and detecting corruption-related offences. To that end, the AFA issues regularly updated guidelines.[4]

The report highlighted that even though the AFA’s controlling and sanctioning missions have been well regarded, they have been carried out to the detriment of its coordination mission.[5]

It suggests, therefore, the creation of a special committee to fight corruption, comprised of representatives of several ministries, in order to clarify the institutional organisation of the France’s anti-corruption policy.[6] This committee would be managed by the AFA,[7] which would therefore redirect its focus towards administrative coordination.

The AFA’s missions of support, control and sanctions, however, would be transferred to the already existing High Authority for the Transparency of Public Life (HATVP),[8] responsible for promoting probity and the exemplary behaviour of public officials,[9] which would then be renamed the High Authority for Probity. The report argues that this would ensure that the controls are performed with greater independence.[10]

 

Encouraging the resort to the Judicial Public Interest Agreement and the creation of specific plea bargaining for executives

One of the most prominent features of the Sapin 2 law was the introduction of the Judicial Public Interest Agreement (CJIP Agreement), an alternative to prosecution offered by a French Prosecutor to a legal entity targeted by criminal investigations regarding a limited scope of offences. Entering into a CJIP Agreement allows the latter to avoid criminal charges in exchange for a fine and the implementation of a compliance programme.[11]

The report gives a very positive assessment of the CJIP which is considered as a true success.[12] The MPs recommend that this mechanism is used more frequently, as it notably allows a more rapid dispute resolution in the context of cross-border corruption cases.[13] They also advise offering more guarantees to legal entities as a means of encouraging self-reporting[14] including the assurance that they will actually be offered a CJIP if they cooperate fully.[15] The level of cooperation of the legal entity could also be taken into account to reduce the level fines.[16]

Nevertheless, the report emphasises that this mechanism only concerns legal entities and not individuals. Therefore, the two MPs suggest the creation of a new negotiated justice mechanism applicable to individuals, which would take the form of an individual guilty plea negotiated in parallel with the CJIP.[17]

 

Broadening the spectrum of entities subject to anti-corruption obligations

Another suggestion for improvement relies on the need to ensure full equality between French and foreign companies regarding the fight against corruption.

Indeed, the Sapin 2 law currently applies to companies and public institutions of an industrial and commercial nature which employs at least 500 people as well as to companies belonging to a group of companies headquartered in France, which employs at least 500 employees, when such entities have a turnover greater than €100m.[18] This wording of the law excludes subsidiaries of large foreign companies headquartered abroad from its scope, which would actually meet the conditions set up in the Sapin 2 law if they were headquartered in France.[19]

The report, therefore, proposes to abandon the condition of location of the head office in France when considering groups of companies in order to subject small subsidiaries of large foreign groups established in France to the requirements of the Sapin 2 law.[20]

By the same logic, it suggests that obligations provided by the Sapin 2 law – such as the implementation of a code of conduct or a risk mapping system which currently apply to private entities – also be extended to public entities.[21]

 

Allowing the Prosecutor to request the appointment of an ad hoc investigator to conduct the internal investigation

Whereas until now the legal entity was free to choose the counsel who would carry out the internal investigation, the report suggests that, in order to ensure the independence of the internal investigator, the Prosecutor’s office should be allowed to request the appointment of an ad hoc agent or the creation of a special committee which would conduct the internal investigation, negotiate the CJIP and represent the company in court.[22]

 

Strengthening the guarantees granted to individuals involved in internal investigations

The conclusion of a CJIP with the Prosecutor largely depends on the level of cooperation of the inquired legal entity. Cooperation can notably be achieved by conducting an internal investigation within such entity. The Sapin 2 law has allowed for an increased use of internal investigations within companies, which contribute to a large extent to determining the truth. [23]

The report highlights that, in order to be truly effective, these must be accompanied by sufficient guarantees granted to individuals who may participate in such investigations.[24] Indeed, these individuals are exposed to a risk of disciplinary and criminal sanctions.[25] It suggests, therefore, granting a right to access the investigation’s files,[26] as a means of encouraging individuals to participate in the process.[27]

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