Answer ... No. French law does not provide for formal leniency programmes for companies that disclose anti-corruption violations.

However, there is a mechanism for natural persons who disclose violations in exchange for lesser penalties. In 2013 a new law introduced into the French Criminal Code the possibility for the perpetrators of, or accomplices to, an offence of bribery or influence peddling of public officials or judicial staff to have their penalties reduced by half if, by informing the administrative or judicial authorities, they make it possible to prevent or stop the offence or to identify other perpetrators or accomplices.

Answer ... In the event of a criminal prosecution for corruption of a company, its management or employees, a robust compliance programme is a factor that may be taken into account.

However, French prosecution agencies and courts have not published any guidance on mitigating factors; unlike the US Department of Justice, which has published, for example,guidance relating to the evaluation of corporate compliance programmes.

Answer ... Defences to charges of anti-corruption violations must be assessed on a case-by-case basis.

Answer ... Yes. Article 22 of the Sapin II Act introduced the settlement agreement into Article 41-1-2 of the French Criminal Procedure Code. Although the settlement agreement was inspired by the deferred prosecution agreements that have been employed in the United States and the United Kingdom, there are several key differences in this regard.

The Agence française anticorruption (AFA) and the Financial Prosecution Office (PNF) recently issued guidelines on the implementation of the settlement agreement.

The settlement agreement procedure authorises the public prosecutor to offer to public or private legal persons who have been accused of offences such as corruption, influence peddling and tax fraud, as well as related offences, regardless of their nationality, turnover or number of employees, to enter into an agreement whose execution will have the effect of extinguishing the public action.

The settlement agreement does not protect the legal representatives of a company, who remain accountable as individuals. The settlement agreement may impose one or more of the following obligations on the legal entity:

• payment of a ‘public interest’ fine, the amount of which shall be in proportion to the benefits derived from the violations (within the limit of 30% of the average annual turnover, calculated on the basis of the last three annual turnover figures known at the time of the findings of the violations);
• implementation of a compulsory compliance programme for a maximum of three years, under the AFA’s supervision. In these cases, the costs incurred by the AFA in carrying out the legal, financial, tax and accounting review necessary for its audit shall be borne by the legal entity, up to a cap stated in the agreement; and
• compensation for damages caused by the offence to any known victims.

After negotiation of its terms between the public prosecutor and the legal entity, the settlement agreement must be validated by a judge (the president of the first-instance court).

The AFA will supervise the execution of the anti-corruption programme required under the settlement agreement. Within the course of its supervision, the AFA “must report to the public prosecutor, at his or her request and at least once per year, on the implementation of the programme”, and “will report any difficulties and will also submit a report when the time limit for execution of the measure lapses”. In case of breach of the settlement agreement, the public prosecutor is authorised to reopen the case.

The first settlement agreement was proposed by the PNF to HSBC Private Bank Suisse SA in 2017, together with a public interest fine of €300 million. Four settlement agreements were signed in the first half of 2018 and one in the first half of 2019, as set out in the following table.

One procedural route to avoid a trial is for the company to opt for a guilty plea (‘Comparution sur Reconnaissance Préalable de Culpabilité’). This will be proposed by the public prosecutor or requested by the offender and is subject to validation by the president of the first-instance court.

Answer ... Violations of the anti-corruption legislation may lead to the imposition of criminal sanctions by criminal courts and/or administrative sanctions by the AFA Enforcement Committee for entities subject to the Sapin II Act requirements.

Criminal courts: Criminal courts may notably impose one or several of the following sanctions for corruption or related offences:

• compliance programme penalty;
• imprisonment (up to 10 years);
• fine;
• prohibition for a period of no more than five years to exercise directly or indirectly the activity in connection with which the offence was committed;
• exclusion from public procurement; and
• any additional sanctions.

Alternatively, as mentioned above, a settlement agreement can be sought to end a prosecution without a criminal conviction.

AFA Enforcement Committee: Where the AFA determines that a company has failed to implement an anti-corruption compliance programme under the Sapin II Act requirements, the AFA’s director may either issue a warning to the company’s legal representatives or initiate a sanctions procedure before the AFA Enforcement Committee.

The AFA Enforcement Committee has the power to impose one or several of the following administrative sanctions:

• warning;
• injunction to adapt compliance procedures for the prevention and detection of acts of corruption or influence peddling within a period of up to three years;
• fine of up to €200,000 for individuals (eg, chairman, CEO) and €1 million for legal persons; and
• publication of the sanction at the company’s expense.

The company may be assisted by legal counsel before the AFA Enforcement Committee.

Answer ... AFA actions: AFA actions shall be time barred after three years, which starts to run from the date on which the breach was established if, within that period, no action was taken to sanction that breach.

Criminal prosecution: Following the reform of the statute of limitations that came into force on 1 March 2017, the limitation period to prosecute offences (‘délit’) such as corruption has doubled from three years to six years.

This period begins to run from the date of the act of corruption or the last act of corruption. If the offence is hidden or dissimulated, the period begins to run only from the date on which the offence could be detected and prosecuted (but the offence cannot be prosecuted more than 12 years after its commission).