This country-specific Q&A provides an overview to bribery & corruption law in France.
It will cover the definition of bribery, regulation, compliance, liability and enforcement as well as insight and opinion and any upcoming legal changes planned for their respective country.
This Q&A is part of the global guide. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/bribery-corruption/
What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
French regulations have a complete legal arsenal punishing active and passive bribery and corruption, whether these offences involve public officials or private persons.
In addition to the offences of bribery /corruption and influence peddling, which may be characterized in numerous cases, there are many other similar offences provided for by specific texts (e.g. the offence of favouritism).
The French law enforcement arsenal has been strengthened by Act of 6 December 2013 to fight serious economic and financial crime, which in addition to increasing penalties and the creation of the National Financial Prosecution Office, has also granted certain anti-corruption associations the right to bring lawsuits instead of (or together with) the Public Prosecutor’s Office.
Before the Sapin II Act of 9 December 2017, the French law’s approach was merely a response based on the repression of the crimes: now, there are compulsory compliance programmes aiming at preventing corruption. In addition to the Sapin II Act, the rules on transparency in public life (11 October 2013 Act) are also part of the legal arsenal against corruption.
Which authorities have jurisdiction to investigate and prosecute bribery in your jurisdiction?
According to article 705 of the Code of Criminal Procedure, the Public Financial Prosecutor’s Office, the investigating judge and the Paris Criminal Court exercise concurrent jurisdiction to investigate and prosecute bribery. The Public Financial Prosecutor’s Office is a specific jurisdiction which has been set out to take into account the great complexity of corruption cases, especially because of the large number of perpetrators, accomplices or victims as well as the geographical area in which they operate.
In addition, a French anticorruption agency (AFA) is also entrusted of investigative powers and may carry out both desk checks and on-the-spot checks. As an administrative authority, AFA’s agents are not able to use police’s coercive powers such as custody.
How is bribery defined?
While the English legal system distinguishes ‘bribery’ from ‘corruption’, the French criminal code only refers to the broad term of ‘corruption’. However, the general French approach of ‘corruption’ is more closely linked to the British definition of bribery. Thus ‘corruption’ in the French legal system is defined as an act whereby a person holding a specific public or private sector function, solicits or proffers or accepts or gives a gift, offer or promise to carry out, obstruct or abstain from carrying out an act pertaining directly or indirectly to his function. The offence of corruption is established by Articles 433-1 and 433-2 of the French Criminal Code.
The French criminal code is very comprehensive regarding the material criteria of corruption.
The British definition of corruption is ‘an abuse of a position of trust in order to gain an undue advantage’, which is more likely to correspond to the influence peddling concept in France, which is sanctioned under French law exactly like corruption.
Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
Corruption is qualified as ‘public corruption’ when the corrupted individual is a public official, and Corruption is defined as ‘private corruption’ when this individual is not a public official. Both qualifications are based on the legal status of the corrupted individual.
The category of ‘public official’ is referred to in French legislation as ‘the person exercising a public office’. It shall be extensively construed under criminal law.
The category encompasses public servants together with persons holding public authority, entrusted with a public service mission or vested with a public elective mandate. As an example, a French notary is considered as a ‘public official’ (Cass. Crim., 11 Oct. 1994, n° 92-81.724). NB: This category is broader than the category of politicians subject to obligations to disclose assets and interests in accordance with the Act 2013 on the Transparency in the Public Life.
The distinction between Public and Private Corruption results essentially in the difference of the main penalties’ quantum incurred. The status of public official justifies heavier sentences. While public Corruption exposes its perpetrators to a penalty of 10 years' imprisonment and a fine of 1 million euros, private Corruption exposes its perpetrators to a penalty of five years' imprisonment and a fine of 500,000 euros.
Please also note that Jurisdictional Corruption is the subject of a specific criminal offence under article 434-9 of the Criminal code.
What are the civil consequences of bribery in your jurisdiction?
As opposed to criminal proceedings, the main purpose of civil proceedings is to obtain compensation for damages from a civil court.
The 3rd article of the Civil Law Convention on Bribery (ratified by France) provides that ‘each party shall ensure that entities or persons who have suffered damages as a result of any act of bribery have the right to initiate legal proceedings to obtain full compensation for such damages. Such compensation may cover material damage, loss of profits and non-pecuniary loss.’
Article 1 of Act No. 2013-1117 of 6 December 2013 allows any approved association to exercise the rights recognized to the civil parties, especially regarding national public bribery, public bribery and bribery.
For Its part, the AFA can apply pecuniary sanctions for non-compliance with its recommendations. The amounts are ≤ €200,000 for natural persons and ≤ €1 million for legal persons. The AFA may also order the publication of its decision.
What are the criminal consequences of bribery in your jurisdiction?
The main penalties incurred by parties to an active or passive corruption pact is ten years' imprisonment and a fine of €1,000,000, the amount of which may be increased to twice the proceeds of the offence. In the case of corruption involving a magistrate, the penalty may be increased to 15 years' imprisonment. In the case of legal persons, the fine is multiplied by 5.
In addition to the main penalties and the complementary penalties for bribery offences, the ineligibility penalty can be imposed for a maximum of ten years against any member of the Government or any elected official.
In order to increase the effectiveness of the French justice system in the fight against bribery, the Sapin II Act has introduced a new settlement procedure i.e. the ‘Judicial Convention in Public Interest’ (CJP).
Article 41-1-2 of the Code of Criminal Procedure allows the public prosecutor to enter into an agreement with a legal person implicated or indicted for bribery, influence peddling, tax fraud laundering or related offences. The Sapin II law limits the maximum amount of the fine that may be imposed on a CJIP signatory company to 30% of its average annual turnover calculated over the last three financial years
Does the law place any restrictions on hospitality, travel and entertainment expenses? Are there specific regulations restricting such expenses for foreign public officials?
The law doesn’t place specific restrictions on hospitality, travel and entertainment expenses. According to the Sapin II Act, each company must be vigilant with regard to these situations. According to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions signed in Paris on 17 December 1997, 10 years' imprisonment and a fine of 150,000 euros shall be imposed for offering, directly or indirectly, without any approval, offers, promises , in order to obtain from a public official of a foreign State (or within a public international organization), whether he performs or refrains from performing an act stemming from his position, assignment or mandate or facilitated by its function, mission or mandate, with a view to obtaining or maintaining a market or other undue advantage in international trade.
The French anti-corruption agency provides that the organisation’s accounting record control policy should also target these operations that it considers especially risky, as determined by its risk mapping.
For example, an organisation can decide to target:
- operations such as donations and bequests, sponsorship and patronage payments,
- commission and fees, entertainment and marketing expenses, and gifts and hospitality,
- atypical transactions such as suspense accounts,
- one-off or high-risk operations such as acquisitions,
- operations involving third-party intermediaries such as agents or consultants, financial or material flows to high-risk accounts or third parties.
The OECD working group in its report on France in 2012 had criticized the very few number of convictions that had been handed down since the transposition by France of the Convention on Combating Bribery of Foreign Public Officials (1997) in International Business Transactions by Act No. 2000-595 enacted on 30 June 2000.
Are political contributions regulated?
The mistrust of the French people towards political parties can be explained by the various cases and controversies that have arisen recently, such as in the Bygmalion case, with suspicions of embezzlement of a parliamentary group's funds, an investigation into the financing of a party via the remuneration of European parliamentary assistants, loans granted by foreign institutions to a French party, etc.
Until 1988, there were no regulations about the political parties financing. The Acts of 11 March 1988, 15 January 1990, 19 January 1995 and 11 April 2003 defined the rules, in particular by capping election expenses. This legislation was created to ensure transparency in the financing of political parties and election campaigns as well as to limit the risk of bribery. On the one hand, the National Commission for Campaign Accounts and political financing (CNCCFP) organises transparency and audits the accounts, and on the other hand, the law limits private financing by prohibiting the financing of political life by legal entities.
To compensate for this, a large public funding system has been created, proportional to the number of votes obtained in elections. Election expenses are also capped. Furthermore, financing by individuals is permitted but limited. Regarding election campaigns, contributions may not exceed 4,600 euros for one or more candidates in the same election. Concerning donations to political parties, the same person may not contribute more than 7,500 euros to different political parties. The fine for violating of this rule is 3,750 euros and/or one year's imprisonment.
However, the High Authority for the Transparency in Public Life (HATVP) is an important independent French administrative body created by the law enacted on 11 October 2013. It is responsible for receiving, monitoring and publishing, together with the Tax authorities, declarations of assets and declarations of interests of certain public officials who are members of the government. It may also be consulted by these same public officials on ethical and conflict of interest issues relating to the performance of their duties and may issue recommendations at the request of the Prime Minister or on his own initiative.
The Sapin II Act has increased transparency in the financing of electoral campaigns and political parties i.e publication of an annual report by the National Campaign Accounts Commission to indicate the comprehensive list of organizations that have made donations stating the amount, as well as the ceiling on campaign expenses for the election of deputies.
Are facilitation payments regulated? If not, what is the general approach to such payments?
Transparency International defines facilitation payments as unofficial payments of small amounts intended to facilitate or ensure the conduct of simple procedures or necessary acts that the payer is entitled to expect, whether on a legal or other basis. These may be small amounts requested by service providers to provide or ‘facilitate’ the services that may be expected of them, or which may be offered to Customs, immigration or other officials to expedite the provision of services or permits. These payments can therefore be made to both private and public sector workers. According to the AFA guidelines the French Codes of Conduct should explicitly prohibit facilitation payments.
Are there any defences available?
The French civil law system strictly differs from the British system on that issue, as there are no defences available, except for the traditional exemptions from criminal responsibility. However the above-mentioned CJIP introduced by the Sapin II Act is an alternate remedy to litigation and a judicial sentence.
Are compliance programs a mitigating factor to reduce/eliminate liability for bribery offences in your jurisdiction?
The implementation of compliance programs -such as the legal program imposed by the Sapin II Act – reduces the risk of liability for the company for several reasons. Firstly, because the risk of bribery occurring is mechanically reduced. Secondly, should an act of bribery occur despite the measures in force aiming at limiting the risk of corruption, the company would be able to contend that it has done the maximum of what could be expected from it and that there is no reason to hold its criminal liability.
Whereas it is too early at this stage to draw precise conclusions regarding the effectiveness of compliance programmes recently launched in France, one can consider that French companies are more and more concerned by the effectiveness of the fight against corruption.
Who may be held liable for bribery? Only individuals, or also corporate entities?
Except for the passive bribery of judicial officers, legal persons may be convicted, notably as accomplices. The penalty shall amount to five times the fine and may be combined with more specific penalties under Article 131-39 of the Criminal code.
In addition, the penalty of complying with an obligation to submit to a compliance program is also incurred for certain bribery offences (Criminal code, arts. 131-39-2,433-26,434-48,435-15 and 445-4).
For the offences of active bribery and passive bribery of private agents only, a CJP may be proposed to the legal person by the public prosecutor, as long as public action has not been initiated.
Has the government published any guidance advising how to comply with anti-corruption and bribery laws in your jurisdiction? If so, what are the elements of an effective corporate compliance program?
The French Anti-Bribery agency which has national competence, is under the authority of the Minister of Justice and the Minister responsible for the Budget, whose task is to help the competent authorities and those confronted with bribery, influence peddling, bribery, fraud, illegal taking of interest, misappropriation of public funds and/or favouritism.
The Sapin II Act has set out an obligation for companies with 500 employees or groups of 500 employees with a turnover of €100 million. This requirement is a general obligation to ‘take measures to prevent and detect the committing of bribery or influence peddling in France or abroad’ (Article 17).
In practice, eight measures have to be implemented by corporate management teams and legal departments:
- mapping the risks ,
- establishing a code of conduct describing the behaviours to be prohibited ,
- establishing procedures for verifying the integrity of the most important customers suppliers, partners and intermediaries ;
- establishing procedures for internal or external audit controls usually carried out by an external auditor) ,
- implementing disciplinary sanctions ,
- training of the most exposed managers and staff ,
- implementing internal procedures for processing alerts ,
- organising an internal evaluation and control system for the measures implemented.
Does the law provide protection to whistle-blowers?
Article 6 of the Act of 9 December 2016 stipulates ‘a whistle-blower is a natural person who reveals or reports disinterestedly and in good faith, a crime or an offence, a clear and serious violation of an international commitment duly ratified or approved by France, of a unilateral act by an international organisation pursuant to such a commitment, or of laws and regulations, or a serious threat or damage to public interest, of which he or she has personal knowledge.’
The whistle-blower benefits from a special protection set out in the new 122-9 article of the criminal code according to which ‘a person who breaches a secrecy protected by law is not criminally liable If It is proved that such disclosure is necessary to safeguard the relevant interests that he or she acts in accordance with the whistle-blower reporting procedures defined by Law and that the person meets the criteria defining a whistle-blower provided for in article 122-9 of the Criminal code’.
ITo benefit from an effective protection the whistle-blower must meet several conditions: disinterestedness, good faith, seriousness of the facts revealed, etc. He must not infringe the solicitor-client privilege.
Following the AFA guidelines the internal whistleblowing system is the procedure that organisations implement to enable employees to disclose potentially non-compliant behaviours and situations to the compliance officer, to eliminate such behaviours and situations and to impose sanctions where appropriate. The internal whistleblowing system should be one part of an overall system for preventing and detecting corruption
How common are government authority investigations into allegations of bribery?
In the past, one considered that there was an opacity of bribery schemes which explained the low number of convictions.
There is now a significant shift in the treatment of the corruption issue. Just after being created, AFA launched several investigations and many companies are awaiting AFA’s controlling agents. In the meantime, French companies are implicitly invited by AFA to fill forms linked to the efficiency of their compliance programme (form containing approximately one hundred questions).
What are the recent trends in investigations and enforcement in your jurisdiction?
In French criminal proceedings the powers of investigation depend on the complexity and the seriousness of the offence. The 2013-1117 Act has extended the powers of control of the French administration. However in case of allegation of bribery the judge may order all relevant investigative measures to find evidence. These provisions also apply to bribery. The French anti-bribery agency has also been entrusted with supervisory powers.
In addition to the civil and criminal sanctions that have been reinforced by recent legislation, the new obligations on companies to prevent bribery represent a major development. Breaches of these prevention obligations will be subject to administrative sanctions.
Is there a process of judicial review for challenging government authority action and decisions?
The French results of the fight against bribery have been regularly evaluated by the SCPC which forwarded an annual report to the Minister of Justice. The French antibribery agency will now be entrusted with this task. The NGO Transparency International also publishes a very useful annual report with a ranking as well as the OECD which produces regular country-by-country reports.
Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?
The adoption of the Sapin II Act is very recent and some decrees aiming at clarifying the enforcement of its provisions are still pending. A clarification of the practical implementation of the rules is the main work in progress.
Within this context, AFA’s mission (which includes the publications of guidelines and their update) will be decisive.
To which international anti-corruption conventions is your country party?
The French legal arsenal is part of a global fight against corruption which complies notably with the following texts:
- The OECD Convention of 21 November 1997 on Combating Bribery of Foreign Public Officials ;
- The Criminal Convention on Corruption issued in Strasburg on 27 January 1999 and signed by France on 9 September 1999 ( and its Additional Protocol of 15 May 2003) ;
- The Civil Law Convention on Corruption done at Strasburg on 4 November 1999.
France is party to both the OECD convention as well as the UNCAC. Furthermore, numerous French companies have fallen under the extra-territoriality of the UK Bribery Act as well as the FCPA. It should be noted, however, that French Codes serve as sources of law for corruption and bribery. More specifically, with regard to international corruption, Articles 435-1 (and seq) of the French Criminal Code applies.
Do you have a concept of legal privilege in your jurisdiction which applies to lawyer-led investigations? If so, please provide details on the extent of that protection.
The absence of the discovery mechanism in France and the absence of a duty of disclosure entail that there have been no internal investigations up to now. Thus, the concept of legal privilege in France only refers to a professional privilege.
In addition to their traditional activity, French lawyers are entrusted with a new mission: internal investigations.
This new task, already carried out by French lawyers in other areas of law such as competition law or arbitration, is likely to grow in accordance with the new obligations provided for by the Sapin II Act.
Lawyers will be confronted to emerging challenges, especially considering the absence of a legal or regulatory framework setting out the conditions of French internal investigations.
The Sapin II Act also introduced the CJP, which enables a company charged with bribery, influence peddling or tax fraud laundering, to conclude a criminal transaction with the public prosecutor provided it commits itself to complying with obligations, including the establishment of a compliance program under the supervision of the French anti-corruption agency.
As part of the implementation of these obligations, it is provided that the French Anti-Corruption agency may request the assistance of ‘experts’ and ‘qualified persons to assist it in carrying out legal, financial, tax and accounting analyses’.
Within this context, the lawyer may also be responsible for formulating recommendations to the company and certifying to the French anti-corruption agency the compliance of the company provided for in an agreement, more specifically a complementary penalty may be imposed.
How much importance does your government place on tackling bribery and corruption? How do you think your jurisdiction’s approach to anti-bribery and corruption compares on an international scale?
France remains 23 rd in the ranking of Transparency International. Thus, the French are lagging behind significantly in the fight against corruption. Despite having been the “black sheep” for a long time, France has shown its willingness to catch up in the fight against corruption.
However, significant progress has been made especially following the implementation of several laws adopted in 2013 after it was revealed that the former Budget minister had a Swiss bank account on which there was about 600,000 euros undeclared to the tax authorities.
The accuracy of the measures provided for by the Sapin II Act has adopted most of the anti-bribery provisions from the FCPA and the UKBA. France has now adopted a same flexible approach as Anglo-Saxons, which combines hard laws and soft laws. French companies subject to Sapin II are clearly sharing the same business principles as regards Bribery and Corruption as the US and UK companies. France’s Authorities are now focused on the fight against corruption just like American and British Authorities.
Generally how serious are organisations in your country about preventing bribery and corruption?
Corruption is a growing concern not only for governments, but for all types of businesses in all jurisdictions.
In parallel with legislative changes, French companies especially those engaged in cross-border activities have a strong interest in developing internal behaviour that proves their willingness to prevent or detect corruption offences before they are examined by the courts.
Several Non-Governmental Organisations are also mobilising against corruption and acting to promote business ethics. Anticor or Transparency International’s publications are very valuable in the implementation and the understanding of the rules.
For example, the so-called ‘Polls of the Elysée’ case was initiated by a complaint filed in 2010 by Anticor for favouritism under article 432-14 of the criminal code. The Criminal Division had ordered that the case be returned to the investigating judge, finding that there were no constitutional, legal or treaty provisions providing for the immunity or criminal irresponsibility of members of the President's office.
Anti-corruption compliance has mainly emerged in France to prevent the criminal risk of conviction for bribery by Anglo-Saxon authorities on the basis of their extraterritorial jurisdiction. The burdensome financial penalties incurred in these jurisdictions have been a strong incentive to adopt compliance programs.
But it would be ‘simplistic’ to claim that the current implementation of these programmes is due to the mere fear of criminal prosecution or strictly financial considerations. Companies' compliance is also the result of their ethical commitments and the desire to adopt a responsible behaviour in the conduct of their economic activities. In this respect, the implementation of compliance programmes accompanies the development of corporate social responsibility.
Following the example of the American authorities who do not hesitate to impose heavy sanctions (BNP, Volkswagen, Deutsche Bank) France has become aware that strong sanctions were needed to ensure real change. It is to this end that the AFA has been given significant sanctioning powers.
What are the biggest challenges enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in your jurisdiction?
Despite a certain will to fight effectively against corruption, the French anti-corruption agency has to rely on limited financial resources as well as a limited number of professionals regarding the number of companies concerned by the Sapin II Act obligations (less than 70 persons).
What do you consider will be the most significant corruption-related challenges posed to businesses in your jurisdiction over the next 18 months?
The implementation of the obligations arising from the Sapin II Act will generate significant cost and operational difficulties.
The compliance of companies with their new obligations, and those that continue to be added on such as ‘the duty of vigilance’, represent a great challenge.
Developing a ‘risk culture’ in such an emerging system of rules is also quite difficult. It will take a long time for French companies to train managers and stakeholders on compliance issues. Particularly, a large number of French companies are currently building or fine tooling their risk maps. In practice, risk mapping involves:
- identifying all internal processes, as well as external processes in which the organisation’s representatives are involved, and describing these processes in detail ,
- defining individual roles and responsibilities within each of these processes for public officials, employees of public-law or private-law entities, or elected representatives ,
- determining appropriate decision-making and internal control procedures for high-risk operations.
How would you improve the legal framework and process for preventing, investigating and prosecuting cases of bribery and corruption?
Concerning the prevention of corruption, it is absolutely necessary that lawyers encourage the fight against corruption in France which damages the reputation of our companies and reflects a bad image of our country.
However, it is the responsibility of the legislator and AFA to clarify the rules and define precisely what is prohibited and what is not. Notably, with regard to the gifts and invitations, we should not end up in an extreme situation where any invitation to a restaurant is considered suspicious because it is an integral part of our culture and heritage. There should be no confusion between what has to be considered as a criminal offence and what is not. It is very important that anti-corruption regulations, which are a necessity, do not alter the French culture and savoir-vivre.
Regarding prosecuting it should be opportune to include in the Judicial Convention (CJP) incentive measures for virtuous behaviours on behalf of companies via the modulation of the amount of the fine. This amount should depend on the ‘pledges of good conduct’ (e.g. for spontaneous disclosure of facts, cooperation in an investigation etc.) which permit authorities to deal more effectively with the cases of transnational corruption and to multiply the quantity of such cases and to contribute to the generation of culture of ethics and responsibility within companies operating on international markets.
The fight against corruption requires technical, financial and human resources that are currently insufficient in France as well as in many European countries. Harmonisation of European policies seem to be an essential prerequisite. The role played by the OECD has led France to make considerable progress in its fight against corporate financial crime.