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.