Answer ... While the rules prohibiting criminal offences such as bribery and influence peddling apply to any person, the Sapin II Act preventing corruption has a limited scope of application.

The Sapin II Act requires French companies and state-owned industrial and commercial entities that exceed certain thresholds to implement an effective system to prevent and detect corruption. With regard to such preventive measures, these companies are supervised by the Agence française anticorruption (AFA).

The following companies must put in place anti-corruption programme:

• French companies with at least 500 employees and a turnover above €100 million;
• French companies belonging to a group with a French parent company, at least 500 employees in total and a consolidated turnover above €100 million;
• subsidiaries, whether French or foreign, of the French companies referred to above that publish consolidated financial statements; and
• French state-owned industrial and commercial entities with at least 500 employees or belonging to a state-owned group with at least 500 employees in total and a consolidated turnover above €100 million.

As a result, any French entity belonging to a group with French parent company with at least 500 employees in total and a consolidated turnover above €100 million is subject to the Sapin II Act.

Answer ... Companies that are subject to the Sapin II Act should comply with the guidelines published by the AFA in proportion to their size and the nature of the risks identified in their risk map. Most of the AFA’s guidelines are published following consultation with the relevant actors and are inspired by international best practices. In addition, companies which do not fall within the scope of the Sapin II Act are also encouraged to set up a compliance programme that meets the Sapin II Act requirements to prevent corruption (even if implementation is not mandatory).

French professional associations such as the Association Française des Marchés Financiers have also issued best practices for the banking and financial industry to consider and manage corruption risks within their activities. According to the AFA, these recommendations “bring French legislation up to the highest standard in this area, and are part of France’s efforts to comply with its international commitments” and “are at least as stringent as the FCPA Resource Guide, the UKBA Guidance and the World Bank’s Anti-Corruption Guidelines”.

Answer ... Any document caught within the anti-corruption programme should be subject to the books and record requirements under the Sapin II Act (eg, documents attesting to the identities of customers, intermediaries, agents and so on).

Discussions between the AFA and the Commission Nationale de l'Informatique et des Libertés on how best to reconcile the recording and data protection rules are ongoing. These authorities intend to publish a handbook in the near future in the context of anti-corruption programmes.

Answer ... No rules under French law require companies to reveal any violation of anti-corruption laws; neither are there leniency provisions for such disclosures.

However, there is an immediate reporting obligation to the public prosecutor for any authority, public officer or civil servant who, in the performance of his or her duties, becomes aware of an offence under Article 40, paragraph 2 of the French Code of Criminal Procedure. However, enforcement of this reporting has been subject to criticism by the Organisation for Economic Co-operation and Development, which has stated that “no warning and reporting mechanism (had) been put in place in government agencies to enable comprehensive enforcement of the provisions of Article 40, paragraph 2 of the Code of Criminal Procedure”, and that “The interpretation of the modalities to report allegations of bribery… was still an outstanding issue”.

Answer ... Administrative violation: Failure to implement an anti-corruption compliance programme that meets the Sapin II Act requirements constitutes a regulatory violation that may lead to administrative sanctions imposed by the AFA Enforcement Committee.

Criminal violation: Failure to implement an anti-corruption compliance programme that meets the Sapin II Act requirements does not constitute a criminal violation per se. However, there is a risk that the AFA may become aware of facts that are likely to qualify as a criminal offence when carrying out its duties and report them to the public prosecutor, resulting in a criminal prosecution.