Analysis
16 March 2017

The French Anticorruption Agency (AFA) explained – Sapin 2 law

The decree will enter into force on March 16, 2017. It defines the three tasks of the AFA which will replace the Central Corruption Prevention Department right from the appointment of his Director scheduled on the same day.

 

Tasks. Pursuant to its tasks of participation to administrative coordination, the AFA will prepare a pluri-annual plan against corruption and will assist the competent French Authorities with respect to international organizations. Under its task of support for the State public authorities, the local authorities and any natural or legal person, will insure training, awareness and assistance upon prevention and risk detection. Under its task of disseminating information to prevent and detect corruption cases, the AFA will contribute, through its cooperation actions and its tasks of support and technical assistance, to enforce the international commitments of French Authorities.

Composition. The AFA includes control and expertise units, a Strategic Committee responsible for providing the overall policy and an Enforcement Committee (Article 2).

Procedure. When someone fails to comply with the duty to implement a prevention and detection system against corruption, the AFA Director will communicate an inspection report to the defendant and give him notice to present written observations. Afterwards, the Director will be able to issue a warning or submit a complaint to the Enforcement Committee, which has equal gender representation. He will also communicate the inspection report, observations, his opinion as to the facts and the sanction that he deems appropriate. The defendant will be given information on the charges against him. The Enforcement Committee will appoint a Rapporteur in charge of investigating the facts in an adversarial manner. The Defendant, who can be assisted by counsel of his choice, will receive the Director’s opinion and will be able to address observations. After two months, the Defendant will be summoned to a public hearing (except when this could interfere with public order, business secrecy or any other legally-protected secrets) during which he will be able to present oral observations, responding the Director representative’s observations (Article 5).

Judges and category A civil servants, who are part of the control and expertise unit “should present their accreditation cards when they conduct onsite controls, which can only be done within business premises, or within private individuals’ home, and need to take place during business hours, after informing the representative of the controlled entity that he can be assisted by any person of his choice” (Article 7).

Conflicts of interest and recusal. Article 6 and 8 address conflicts of interest between members of the Control and Expertise units and the ones from the Enforcement Committee, and the recusal of those persons.

Publication of the administrative decision on the French Anticorruption Agency

Additional subdirectorates of the AFA. Pursuant to the terms of the administrative decision of March 14, 2017 on the organization of the AFA, the AFA “includes, in addition to the Enforcement Committee and the Strategic Committee, the Advisory, Strategic Analysis and International Affairs Subdirectorate, the Control Subdirectorate and the General Secretariat” (Article 1).

The Advisory, Strategic Analysis and International Affairs Subdirectorate. The Advisory, Strategic Analysis and International Affairs Subdirectorate is in charge of the centralization, outreach of information and good practices, and of the development of recommendations to assist companies which must implement a corruption or influence-peddling risks prevention and detection system (Article 2).

The Control Subdirectorate. The Control Subdirectorate conducts off-site and on-site verifications of the implementation of compliance measures (code of conduct, whistleblower mechanism, risk mapping, evaluating procedures of clients, first rank providers and intermediaries’ situation regarding risk mapping, internal or external accounting control procedures, training arrangements for executives and personnel most exposed to the risk of corruption and influence peddling, disciplinary regime, internal framework for controlling implemented measures). It monitors the execution of decisions taken by the Sanctions Commission and controls the execution of the sentence to implement a compliance program. It is tasked with controlling the adequacy of measures regarding the prevention and detection of corruption and compliance measures put in place. It can issue recommendations for the purpose of improving existing procedures (Article 3).

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