TerraLex Guide to Anticorruption Legislation

2000

The applicable anticorruption legislation in France is: - The provisions of the French Criminal Code (FCC) in relation to corruption offences (bribery, trading in influence, misappropriation of public funds…)

• Act n° 2016-1691 of December 9th of 2016 (so called, “Sapin 2 Act”) in relation to mandatory prevention and detection measures.

The following is prohibited under French law: - Public corruption of French officials: Art. 433-1 FCC (proposing, giving in to a solicitation) and Art. 432-11 FCC (soliciting, agreeing)

• Public corruption of foreign officials: Art. 435-1 FCC (soliciting, agreeing) and Art 435-3 FCC (proposing, giving in to a solicitation)
• Private corruption (business to business): Art. 445-1 (proposing, giving in to a solicitation) and Art. 445-1-1 (soliciting, agreeing)
• Trading in influence by French officials: Art. 433-1 FCC (proposing, giving in to a solicitation), Art. 433-2 FCC (soliciting, agreeing) and Art 432-11 FCC (soliciting, agreeing while in office)
• Trading in influence by foreign officials: Art. 435-4 FCC (proposing, giving in to a solicitation) and Art. 435-2 FCC (soliciting, agreeing)

Other:

• Concussion (= requesting or receiving undue contributions or taxes): Art. 432-10 FCC
• Illegal taking of interest: Art. 432-12 FCC
• Favoritism: Art. 432-14 FCC
• Misappropriation of public funds: Art. 432-15 FCC

Yes. Bribery of representatives of foreign states is also punishable under French law.

It is an offence to, directly or indirectly, unduly offer promises, gifts, presents or benefits of any kind to obtain from a public official (or a person entrusted with a public service mission, or a person who holds a public elective office) in a foreign State or with a public international organisation, to perform or refrain from performing any act in the exercise of his office, with a view to obtaining or retaining a contract or other undue advantage in international trade.

The penalty can be up to 10 years' imprisonment and a fine of EUR 1,000,000 for natural persons and EUR 5,000,000 for legal entities (Art. 435-3 and 131-38 of the French Criminal Code).

Yes. Corruption, both active and passive, is prohibited both in the public and private sectors.

Offering promises, gifts, or donations to a person with the aim of getting them to do or refrain from doing something, as well as demanding or accepting such advantages from another person, may trigger penalties of up to 5 years' imprisonment and a fine of EUR 500,000 for natural persons and EUR 2,500,000 for legal entities (Art. 445-1 and 445-2 and Art. 131-38 of the French Criminal Code).

No. Corruption includes any advantage promised or given to a public official to perform an act pertaining to his or her function.

Facilitation payments are prohibited both by the French Criminal Code (articles 433-1, 432-11 and 435-3) and by international conventions ratified by France (2003 United Nations Convention against Corruption, known as the Merida Convention (Articles 15 and 16); World Bank Group's Integrity Guidelines (§4.6)).

Yes, a company may be criminally liable for corruption offences committed by a third party if it has knowledge of the offence or of the fraudulent origin of the funds.

There are three possible ways in which a company can be held liable in this context:

• Complicity: The accomplice, although not physically involved in the offence, has suggested, or instructed the author to commit it. Sanctions are the same as for the author;
• Receiving the product of an offence (“recel”): e.g. when a contract was knowingly obtained by bribery;
• Money laundering by facilitating the false justification of the origin of funds. No requirement for the money launderer to make a profit

Yes. When bribery targets a member of the French public administration or a person working in the French justice system, French law applies.

Conversely, when acts of bribery target foreign public officials, whether they are members of a public administration or persons working in the field of justice (art. 435-6-2 and 435-11-2 of the French Criminal Code), French law applies to the offences provided for in articles 435-1 to 435-4 of the French Criminal Code committed abroad by a French person or by a person habitually residing or exercising all or part of his economic activity on French territory.

Yes. Directors may be held liable for the corruption offences established by French Criminal law (Articles 121-1 and 121-2 of the French Criminal Code). However, the director may be held liable only if he himself committed the offence, ordered it, or deliberately allowed it to be committed by an employee.

In addition, the director may be held liable for failing to take mandatory measures to prevent corruption. In the event of non-compliance with the obligations to have in place a specific scheme to prevent corruption, a fine of up to €200,000 may be imposed on the company's directors by the French Anticorruption Agency (AFA).

The general principle of criminal liability of legal persons, as authors or accomplices, for offences committed on their behalf by their bodies corporate or representatives, applies to corruption offences.

• Penalties incurred by corporations for corruption offences
• for acts of corruption in the public sector, in France and abroad: Fine up to EUR 5 million or 10 times the proceeds of the offence,
• for acts of corruption in the private sector or for trading in influence: Fine of up to EUR 2.5 million or 10 times the proceeds of the offence.

Complementary penalties include: confiscation of property used in the commission of the offence or the proceeds thereof, posting or dissemination of the decision of conviction, prohibition of one or more activities, placement under judicial supervision, closure of one or more establishments at the origin of the acts, exclusion of public tendering, ban on offers to the public of securities or the admission of securities to trading on a regulated market, ban on issuing cheques.

• Penalties incurred by natural persons for corruption offenses
• for acts of corruption in the public sector: Up to 10 years' imprisonment and fine up to EUR 1 million or twice the proceeds of the crime,
• for acts of corruption in the private sector or for trading in influence: Up to 5 years’ imprisonment and fine up to EUR 500,000 or twice the proceeds of the offence.

Complementary penalties include: prohibition of civic, civil and family rights, prohibition on the exercise of a public office or on the exercise of the professional or social activity in the course of which the offence was committed, prohibition on directing, administering, managing or controlling in any capacity, directly or indirectly, for one's own account or for the account of another, a commercial or industrial undertaking or company, confiscation of property derived from the offence, posting or dissemination of the decision of conviction.

When the offence, be it corruption or trading in influence, has been committed by a foreigner, he may also be banned from the French territory (either permanently or for a period of up to 10 years).

Companies (and their directors) with significant activities in France are required to implement preventive an anti-corruption scheme. This activity is reflected by certain thresholds, which may be met at company level OR at group level if the group is headquartered in France (Sapin 2 Law - Art. 17):

• have at least 500 employees,
• and sales or consolidated sales exceeding EUR 100 million.

This scheme must include: a risk mapping, a code of conduct, an internal whistle-blowing system, management training, various internal assessment and control procedures, and internal sanctions in the event of non-compliance.

Compliance with the obligation to have an anti-corruption scheme is monitored by the French Anti-Corruption Agency (AFA). When AFA finds that a company has failed to comply with this obligation, and after giving it the opportunity to exercise its right of defense, AFA may:

• Issue a warning,
• Order the company and its representatives to complete/adapt internal procedures in a certain way and within certain timing,
• Impose a fine of up to €1 million on the company and up to €200,000 on its representatives.

No, the implementation of a compliance program is not a mitigating circumstance. Where a company is required to implement such a compliance program, failure to do so would result in a specific sanction, distinct from the sanction incurred for the established offense.

The Sapin 2 Law enabled the public prosecutor to enter into a “judicial agreement in the public interest” with a legal entity accused of breaches of probity, must then be approved by the judge at a public hearing. This judicial agreement extinguishes public prosecution if the company fulfils its commitments, which may consist of:

• payment of a public interest fine – up to 30% of annual turnover,
• implementing a new or upgraded compliance programme, under AFA's supervision,
• compensating victims.