Answer ... Prevention: Until recently, French law did not expressly require companies to implement preventive measures to combat corruption. Following recommendations by international organisations such as the Organisation for Economic Cooperation and Development (OECD), the Group of States against Corruption (GRECO) and Transparency International, which were critical of the lack of enforcement of anti-corruption laws in France, the French authorities have reinforced the anti-corruption regime in France through:

• a marked increase in the number of prosecutions of corruption offences; and
• the adoption of a new anti-bribery law in December 2016 (the Sapin II Act), which:
• • introduced an obligation for French companies and companies headquartered in France (meeting certain criteria, see question 4.1) to implement a compliance programme with the objective of preventing corruption; and
  • created a French anti-corruption agency, the Agence française anticorruption (AFA), with the mission of assessing the robustness of compliance programmes and imposing sanctions in the case of non-conformity.

Enforcement: French criminal law, in particular the French Criminal Code, contains extensive rules relating to the fight against corruption and bribery, including active and passive corruption and influence peddling, in both the public and private sectors, domestic or foreign. It also provides for a list of related offences, such as unlawful taking of interests, misappropriation of public funds, extortion by public officials (concussion) and favouritism.

Answer ... European Union: The Treaty on the Functioning of the European Union recognises corruption as a ‘euro-crime’, listing it among the particularly serious crimes with a cross-border dimension for which minimum rules harmonising the definition of criminal offences and sanctions may be established. The European Commission has been given a political mandate “to measure efforts in the fight against corruption and to develop a comprehensive EU anti-corruption policy”, in close cooperation with GRECO (in accordance with the Stockholm Programme).

As a member of the European Union, France has an obligation to comply with European laws and institutions. The European Anti-fraud Office and the European Public Prosecutor’s Office (which was recently created and will start operating in 2020) may both intervene in the context of certain corruption cases.

France is also a party to several European conventions, such as:

• the European Union Convention on the Fight against Corruption Involving Officials of the European Communities or of the EU Member States signed on 26 May 1997 (ratified on 1999), which requires EU member states to criminalise corruption;
• the EU Convention on the Protection of the European Communities’ Financial Interests and its first Protocol (harmonising the definition of bribery of public officials and the penalties for corruption offences) (1996) and second Protocol (1997); and
• the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000.

The European legislation in other areas such as anti-money laundering and public procurement may also include important anti-corruption provisions.

Council of Europe: France has notably ratified:

• the Council of Europe’s Criminal and Civil Law Conventions on Corruption of 27 January 1999 and 4 November 1999 (ratified on 2008); and
• the Additional Protocol to the Council of Europe Criminal Law Convention on International Corruption signed on 14 May 2003 (ratified on 2007).

OECD: France is a party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention). France also adheres to non-legally binding OECD recommendations such as the Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions adopted on 2009 (currently under review).

United Nations: France is a party to the first global convention to fight corruption – the United Nations Convention against Corruption, which France signed on 31 October 2003 (Merida Convention).

Answer ... Criminal courts: Thus far, the French courts and prosecution agencies have not provided any written guidance – unlike the US Department of Justice, which, for example, published guidance relating to the evaluation of corporate compliance programmes in April 2019.

French anti-corruption agency: The Agence française anticorruption (AFA), recently created by the Sapin II Act, is entitled to issue various non-binding guidelines, such as its Recommendationsto Help Private and Public Sector Entities Prevent and Detect Corruption, Influence Peddling, Extortion by Public Officials, Unlawful Taking of Interest, Misappropriation of Public Funds and Favouritism, and various practical handbooks in relation to the Sapin II Act requirements (accessible on the AFA’s website). Most of these guidelines are published following a public consultation of the relevant actors and are updated from time to time.

Although the AFA guidelines are not legally binding, French practitioners generally take the view that any entity subject to the Sapin II Act requirements should comply with them, since the AFA considers that they “form a coherent set of measures that the AFA regards as constituting an effective anti-corruption programme”.

In addition to the publication of guidance materials, the AFA provides advice and guidance to entities subject to the Sapin II Act requirements, including training and awareness-raising activities, and responds to specific technical queries.

Answer ... Regulatory enforcement: The AFA is a national agency headed by a magistrate under the joint supervision of the Ministry of Finance and the Ministry of Justice, with broad administrative powers.

The AFA also includes an Enforcement Committee, which may impose various sanctions in case of non-compliance with the Sapin II Act.

In particular, the AFA has the following powers:

• Conduct inspections: The AFA may conduct inspections (off-site and on-site) of private and public sector entities to assess the adequacy of their anti-corruption compliance programmes. To this end, the AFA is also empowered, if deemed necessary for the inspection, to:
• • obtain all information and documents; and
  • interview any person.
• Issue warnings: The AFA’s director may issue a warning to the representatives of the inspected entity by means of a letter inviting the entity to implement the recommendations contained in the final inspection report so as to comply with its legal obligations within a specified timeframe.
• Notify the public prosecutor: If the AFA becomes aware of facts that are likely to qualify as criminal offences, it may report them to the relevant public prosecutor.
• Impose sanctions: If the AFA determines that an entity has failed to implement an adequate anti-corruption compliance programme, its director may notify the AFA Enforcement Committee.

Criminal enforcement: The power to prosecute perpetrators of acts of corruption rests with the public prosecutor. During the course of an investigation, public prosecutors are accompanied by personnel from other investigation services, such as the judicial police and, in particular, the Central Office for the Fight against Corruption and Financial and Tax Offences (OCFLCIFF). Where necessary, prosecutors may also approach investigating magistrates to conduct full investigations.

A public prosecutor from one of the three following categories of prosecution offices may prosecute acts of corruption:

• Financial Prosecution Office (PNF);
• territorial prosecution offices; and
• prosecution offices of interregional specialised courts (JIRS).

The public prosecutor has various powers, including to make on-site searches, confiscate items, conduct witness interviews and hear suspects. For corruption cases, the public prosecutor may also authorise police officers to use special investigative procedures used in the fight against organised crime. These investigative techniques are particularly intrusive and include infiltration, pseudonymous investigations, interception of telephone conversations and the use of International Mobile Subscriber Identity catchers.

In addition, the Sapin II Act empowers public prosecutors to propose that a company which is subject to an investigation for corruption or related offences enter into a settlement agreement (‘Convention Judiciaire d’Intérêt Public’ – CJIP), inspired by the US and UK deferred prosecution agreements. The settlement agreement is not regarded as a conviction and, consequently, is not registered in the Criminal Record Bulletin No 1. However, the settlement agreement is published on the AFA’s website.

Corruption offences must be prosecuted before the criminal courts. Where the prosecution is conducted by the PNF, the 32nd Chamber of the Paris Court of First Instance has exclusive jurisdiction over these cases at first instance.

The criminal courts may impose various sanctions, including fines and prison sentences, as well as ancillary penalties.

A new sanction was introduced under the Sapin II Act for any legal entities found responsible for corruption and influence peddling offences. Criminal courts may sanction such entities with a ‘compliance programme penalty’ (‘Peine de Programme de Mise en Conformité’), requiring them to comply, for up to five years, with the obligation to implement an anti-corruption compliance programme, under the AFA’s supervision. This penalty can be imposed on all legal entities, private and public, regardless of size, form, sector of activity and whether they are French or foreign registered.

Answer ... AFA: In the course of 2017, the AFA issued four warnings as a result of six inspections of entities subject to the Sapin II Act. In 2018, the AFA conducted 43 inspections on its own initiative and four inspections within the context of settlement agreements.

In 2018, the AFA reported acts of corruption or related offences to several public prosecutor offices, including the PNF.

The first session of the AFA Enforcement Committee was held on 25 June 2019, against a French corporate entity, leading to a non-conviction decision published in July 2019.

PNF: On 1 January 2019 513 proceedings were ongoing at the PNF, 47% of which concerned corruption and related offences such as influence peddling. Of those, 90 related to a public official in a foreign state or within an international organisation.

In 2018, 18 persons were subject to criminal sanctions in relation to corruption or related offences; of those, three faced imprisonment and 11 were barred from exercising their professions.

French courts: In 2017 the French courts imposed 297 sanctions in relation to corruption or related offences.

Answer ... A recent parliamentary report recommends that the French government adopt several measures in relation to the current anti-corruption legislation – particularly as regards the resources allocated to fighting corruption, the settlement agreement and the rules governing the liability of legal entities – with a view towards further protecting France from foreign laws with extraterritorial application over French corporates and persons (such as the FCPA). France has also been encouraged by GRECO and the OECD, through their recommendations, to continue its efforts to bolster its arsenal against bribery, in particular foreign bribery.