Analysis
28 December 2021

OECD Convention on Combating Bribery in France Phase 4

On 9 December 2021, the OECD adopted its Phase 4 report on France’s implementation of the Convention and the 2009 Recommendation of the Council on Combating Bribery of Foreign Public Officials in International Business Transactions.

 

Adopted on 9 December 2021 by the OECD Working Group on Bribery pursuant to its fourth phase of monitoring, the Phase 4 Report[1] assesses France’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions [2] and of the 2009 Recommendation of the Council for Further Combating such bribery[3]. It also makes recommendations for the purpose of enhancing France’s actions in this field[4].

The Report details France’s achievements in its fight against bribery of foreign officials and the challenges it faced in detecting and sanctioning transnational bribery, before suggesting areas for improvement. The Reports also addresses corporate liability, international cooperation as well as issues raised during past evaluations which were left unanswered[5].

 

I.  Significant achievements in law enforcement albeit a remaining insufficiency in prosecutions and convictions rate in comparison with the high exposure of French companies to bribery of foreign public officials

The Working Group applauds France for its achievements in sanctioning bribery of foreign officials since the third Phase (October 2012)[6]. In contrast to 2012, where only three simple cases resulted in the final conviction of four individuals[7], nine additional “more complex“[8] cases were identified between October 2012 and March 2021, in which nineteen individuals and eighteen legal entities were convicted for bribery of foreign public officials or complicity in this offence[9]. These statistics do not include the five cases which were resolved through Judicial Public Interest Agreements (“CJIP”) for bribery of foreign public officials concluded with five legal entities[10], over the same timeframe.

Overall, the Report notes a drastic increase in the number of investigations initiated since Phase 3. A total of 108 cases on bribery of foreign officials have been investigated, for which fifty-two are still ongoing, thirty-five being handled by the National Financial Prosecutor’s Office (“PNF”)[11].

Nevertheless, the Working Group observes that, despite the fact that French companies are highly exposed to the risk of bribery[12], the proportion of cases solved as well as the number of investigations and convictions against legal entities remains low, as only 13% of the hundred and eight above-mentioned cases resulted in a final conviction or a CJIP[13]. It is thus stressed that certain facts relating to large companies have never been investigated[14], even though they were identified by the Working Group[15].

 

II.  France’s modern legal tools for combating bribery of foreign public officials is well received despite structural resource problems and upcoming reforms deemed worrying

The Report commends France’s efforts for bringing new actors in the fight against international bribery through a series of legislative reforms since 2012. Indeed, the detection, the prevention as well as the repression of bribery acts have been favored, on the one hand, by the creation of the PNF and the Central Office for the Fight against Bribery, Financial and Fiscal Offences (“OCLCIFF“) in 2013[16], and on the other hand, by the creation of the French Anti-Corruption Agency (“AFA“) introduced by the 2016 Sapin 2 law[17].

The Working Group also noticed that there has been an inflation of legislations to strengthen the punishment of international briberies. Indeed, legislations removed major obstacles to prosecuting bribery of foreign public officials, especially the requirement of reciprocity of incrimination[18], through a significant increase in the amount of penalties incurred by natural[19] and legal persons[20], by simplifying the procedural rules governing the initiation of prosecutions[21], by extending territorial jurisdiction of French courts in matters of international bribery[22], by reinforcing the means and techniques of investigation available[23], or even by introducing the possibility for authorized anti-bribery associations to become a civil party (“partie civile”)[24].

However, the Working Group underlines resource-related problems affecting the majority of the above-mentioned institutions and the ongoing and future reforms which may hinder the observed progress[25]. The two-year cap on the duration of preliminary investigations provided for by the 2021 Law could entail a massive transfer of cases to investigating judges who would face difficulties in absorbing all of them[26]. In addition, the reorganization of the AFA as proposed in the bill of 21 October 2021, which calls for a merger with the HATVP[27], could weaken both institutions according to some commentators[28]. The OECD therefore recommends that AFA‘s independence be preserved[29].

 

III.  A needed improvement of negotiated justice for natural persons so as to increase CJIPs’ attractiveness for legal entities

The OECD applauds France for having developed a criminal justice policy towards negotiated justice, specifically around the Plea Bargain (“CRPC“) framework, as well as for its willingness to rely on such mechanism beyond the simplest of cases, as evidenced by the PNF’s change in strategy, which now considers the CRPC in certain complex cases[30].

Nevertheless, the Report deplores the limited use of the CRPC, especially when it is proposed with a CJIP. Since 2012, the CRPC has only been used once, in 2016, to convict an individual for bribery of foreign public officials. The CRPC has also been used once, in 2019, to convict three legal entities for organized laundering of illicit proceeds related to bribery of foreign public officials[31]. Indeed, the Working Group observes the low attractiveness of the CRPC when proposed in conjunction with a CJIP due to the admission of guilt on the individual’s part which when coupled with the company’s admission of the facts, makes the individual vulnerable in the event of criminal proceedings’ resumption leading to trial[32].

The OECD therefore recommends that France strengthen the publicity and transparency of the CRPC procedures[33] and render negotiated justice more effective by including individuals in the CJIP procedure or by creating a new mechanism that would ensure better harmony between the alternatives to prosecution offered to natural and legal persons regarding international bribery[34].

 

IV.  International cooperation ensured by dedicated but limited mutual legal assistance tools, and hampered by pieces of legislations

The Working Group notes the existence of actors dedicated to mutual legal assistance (the Bureau for International Mutual Assistance in Criminal Matter and the liaison magistrates)[35] as well as the dynamic and growing support from the PNF in this mutual assistance procedures[36]. However, the OECD regrets the slow processing of mutual assistance requests issued abroad and recommends that France takes measures to ensure a systematic follow-up of these requests when they remain unexecuted by foreign authorities[37].

The Report also raises issues around the 1968 blocking Statute and other grounds for non-execution of foreign requests, such as breach of public order or to the “essential interests of the Nation”, or secrets that can be invoked against investigative authorities, generating delays in the processing of these requests[38] and representing an obstacle to mutual legal assistance in bribery matters. Therefore, the Group’s recommendations stress for a greater clarification around the requirements for opposing the blocking Statute and article 694-4 of the Criminal Procedure Code in bribery cases[39].

 

V.  Several recommendations from the OECD to rapidly strengthen the fight against bribery in France

Among the OECD’s recommendations[40], the following are noteworthy: (i) increasing the means and resources available to investigators and magistrates within the Prosecutor’s Office, investigating judges, and trial judges[41]; (ii) safeguarding the role of the PNF in handling bribery cases[42]; and (iii) preserving AFA’s role in defining and monitoring compliance measures and their application within companies[43].

The Working Group invites France to submit an oral report on measures taken in application of these recommendations within a year[44].

The Working Group also invites France to submit a written report on measures taken in application of all the recommendations and on its efforts to implement the Convention by December 2023[45].

Therefore, new anti-bribery measures may be taken shortly in France, strengthening and complementing the latest key measures laid down by the 2016 Sapin 2 Law.

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