Answer ... Definition: The proposal or offering of gifts, hospitality and expenses to a person may amount to an offence such as bribery or influence peddling, depending on the circumstances of the case.
There are no rules or guidelines under French criminal law for determining when a gift or hospitality may be viewed as having crossed the line. Likewise, French law does not provide for any specific safe harbour or de minimis amounts. The question of whether gifts, hospitality or expenses incurred could be viewed as an offence must therefore be determined on a case-by-case basis, depending on the circumstances of the case.
However, members of the French Parliament are subject to a code of conduct in relation to gifts and hospitality:
- Members of the French National Assembly must report to the compliance officer any gift, invitation to a cultural or sporting event, or benefit exceeding €150 received in the course of their mandate. They must also report any acceptance of travel. The report must be made prior to the travel and must detail the purpose and the financing of the travel.
- Members of the French Senate must report gifts, presents or benefits in kind they receive exceeding €150 (except customary gifts) within 30 days from their receipt to the Senate Office. Invitations received which exceed €150 must also be notified to the same office at least 30 days before the event or on receipt. Invitations for cultural or sporting events in France, and from French authorities or linked to a local mandate, do not fall within the scope of the reporting. Invitations reported are published on the Senate website.
The Sapin II Act has reinforced the regulation of lobbying in France by providing:
- a definition of ‘lobbyist’;
- disclosure and ethic requirements; and
- sanctions in case of non-compliance.
The following are among the good conduct rules that lobbyists should comply with:
- Refrain from proposing or offering to their contacts any gifts or other benefits of significant value. No additional detail is provided by the law; and
- Refrain from inciting their contacts to breach their good conduct rules.
Case law: French courts have typically interpreted ‘any advantage’ broadly. For instance, French courts have ruled that the offering of meals (under certain circumstances), sums of money, non-cash benefits and entertainment may be characterised as bribery.
Self-appreciation: It is for the relevant person to assess whether the proposal, offering or acceptance of gifts, hospitality or expenses complies with applicable laws.
For entities subject to the Sapin II Act (see question 4.1), the Agence française anticorruption (AFA) expressly requires the inclusion in their compliance programme of guidelines regarding gifts, hospitality and sponsorships. In its 2018 annual report, the AFA expressly advised entities to:
- explain under which conditions gifts and hospitality could be accepted; and
- record in a specific register the nature, amount, frequency and origin of any gift or hospitality received.
The AFA is currently preparing guidelines on gifts and hospitality.
Answer ... Definition: Although facilitation payments will usually give rise to an undue advantage, facilitation payments are not expressly mentioned in French criminal law.
To date, there are no rules or guidelines under French criminal law for determining in which cases a facilitation payment may be deemed acceptable.
Particular attention should be paid to facilitation payments, especially given that the European Parliament has called for vigilance in this regard, stating that “bribery should not be concealed by the abuse of the term ‘facilitation payments’, which the OECD Convention considers acceptable under certain, specific circumstances (small payments, e.g. to get permission to unload goods in a port)”. It has urged “Member States to agree to reject this notion, or to use it only in extreme situations”.
Case law: French courts have typically interpreted ‘undue advantage’ broadly (see question 2.4).
Self-appreciation: It is for the relevant person to assess whether a facilitation payment complies with applicable laws.
For entities which are subject to the Sapin II Act (see question 4.1), the AFA expressly:
- indicates in its guidelines that all facilitation payments (irrespective of amount and frequency) can be the object of prosecution for corruption; and
- requires inclusion of rules on facilitation payments in their compliance programmes.
Answer ... French criminal law contains express provisions on bribery committed through third parties. The offence of corruption may be committed where the undue advantage is provided through third parties such as intermediaries, agents and consulting firms.
As the use of an intermediary could give rise to an important risk of corruption, the AFA has expressly recommended that entities subject to the Sapin II Act (see question 4.1) include specific rules on the use of intermediaries in their compliance programmes, to manage the risk of corruption.
A third party involved in a bribery case will be held criminally liable together with the person on whose behalf the third party acted. Under French criminal law, the accomplice to an offence shall be punished as the perpetrator of that offence.
Answer ... Yes, under French criminal law, legal entities can be criminally liable for offences committed for their benefit by their management or representatives (including employees with the power to represent the company and acting on its behalf). Moreover, case law has held that the criminal liability of a legal entity can also be engaged by the acts of persons who, while not members of official bodies or representatives of the company, are in practice conducting these functions.
The breach of an internal corporate policy by the management or representatives will not exonerate the company from criminal liability.
Answer ... Yes, under certain circumstances.
The following are certain principles under French criminal law in relation to companies that could prove useful in this regard:
- “No one is criminally liable except for his/her own actions”;
- A ‘group of entities’ does not have legal personality; and
- Legal entities are criminally liable for offences committed for their benefit by their management or representatives.
It follows from the above that an offence cannot be attributed to a person who did not commit or participate in it. However, this principle may not apply where:
- a subsidiary does not have effective operational independence. In fact, case law has found that an offence committed by a subsidiary may be attributed to the parent company where the nexus between the two entities is so strong that the subsidiary has no autonomy and simply carries out, in all material respects, the instructions of the parent company. The liability of the parent company may also be brought up in case of any confusion of capital and/or technical means, which may be qualified on a case-by-case assessment of circumstantial evidence (eg, where two companies share their registered office, human and/or technical resources and logos, exchange cash flows and so on); or
- the parent company participated as an accomplice to the offence committed by the subsidiary.
Under French criminal law, an ‘accomplice’ is a person that:
- knowingly facilitates the preparation or commission of an offence by means of support or assistance; or
- through gift, promise, threat, order, abuse of authority or power, incites an offence or gives instructions to commit one.
The issue of liability within international groups was raised by the Organisation for Economic Co-operation and Development, which has asked France to clarify “that a legal person cannot escape liability for acts of bribery by making use of an intermediary, including a related legal person”. In response, France indicated that French law “on conspiracy and complicity which determines the liability of parent companies for actions of foreign subsidiaries is very familiar to prosecutors and courts”. It further pointed out that:
the Chancellerie [Central Administration of the Ministry of Justice] is keen to remove any ambiguity on this matter in relation to action against foreign bribery, and states expressly in its latest circular on criminal policy in this area (page 7) that “legal persons may be rendered criminally liable by the actions of a person to whom powers have been delegated, for instance the director of a foreign subsidiary”.
Answer ... Criminal liability: The French courts have held that in the case of a transaction through which a company may lose its legal form (eg, following a merger or dissolution), the successor company may not be held liable for any acts of bribery committed by legacy companies that were sentenced for conviction before the date of the transaction, on the basis of Article 121-1 of the French Criminal Code, according to which any person is criminally liable only for own actions.
However, the Court of Justice of the European Union has ruled that a conviction which becomes final after the date of the transaction for an offence committed by a legacy company before the transaction must be transferred to the successor. Based on recent case law, the French courts are continuing to apply the criterion as stated above.
Individuals: The execution of a transaction through which a company loses its legal form does not affect the conditions for engaging the criminal liability of the relevant individuals (eg, legal representatives of the legacy company).
Civil liability: In case of a merger, the absorbed entity may lose its legal personality and there is a universal transfer of its assets to the successor entity. Such transmission includes any civil claims that have arisen or may arise.