A guest post today from Paris-based Bryan Cave Leighton Paisner attorneys Cécile Terret and David Père.
On 2 June 2020, French Minister of Justice Nicole Belloubet released guidelines to prosecutors setting out the contours of French criminal policy regarding international corruption (the “Note”). This Note recalls the major role to be played by the National Financial Prosecutor’s Office (PNF) and then presents the principles that should guide legal action and sanctions.
The Note highlights the will of French enforcement authority to move forward by taking an approach which can appear to be close to the US Foreign Corrupt Practices Act practice, including suing individual and/or companies for misconduct outside of France. If those foreign companies engage in whole or in part in economic activities in France, the Note indicates that this should constitute a prerequisite to coverage: foreign legal entity having in France a subsidiary, branches, commercial offices or other facilities, even with no legal status. This confirms the place France intends since the adoption of the Sapin II law in 2016 to take in the fight against international corruption
Major role of the PNF
After recalling the various actors who can alert the PNF (e.g., whistleblowers, complaints filed by registered anticorruption association such as Transparency International, voluntary disclosure made by companies) as well as the visibility and international recognition of the PNF, the Note, modelled on the US practice of voluntary disclosure, calls on companies to bring to the attention of the PNF on a voluntary basis facts of corruption within their organisation. With this in mind, the PNF will also develop exchanges with the largest employer federation in France, the MEDEF, in order to define and implement incentive arrangements for spontaneous disclosure.
Domestic and foreign press articles on corruption are also likely to be subject to in-depth checks and could potentially lead to criminal investigations by the PNF. The Note even specifies that for instance the Magistrate in charge of the communication within the PNF could be in charge of monitoring such articles.
Principles Guiding Legal Action
In 2016, the commonly called Sapin II Law introduced into French criminal law a new settlement procedure instrument, the Judicial Public Interest Agreement (CJIP). According to this procedure, a settlement agreement may be proposed by the PNF to a legal person under suspicion or investigation for acts of corruption.
On this topic, the Note underlines that the factors taken in account for a CJIP should be:
– The lack of track record of the legal person;
– The voluntary nature of the disclosure of facts by the latter;
– The degree of cooperation with the judicial authority demonstrated by the directors.
When these conditions do not appear to be met, an Appearance Upon Prior Recognition of Guilt (CRPC), the French equivalent of a guilty plea, may be considered. The Note adds that if the case is referred to the criminal court, whenever deemed appropriate, additional punishment can be imposed such as publication of the decision, closure of the company’s establishments, confiscation of seized assets and exclusion from public contracts.
