The legal framework governing bribery and corruption in France is centred around the French Criminal Code which defines and sanctions offences such as corruption and influence peddling. It also provides for specific forms of bribery.

Procedural rules applicable to the investigation and prosecution of bribery cases are provided for in the French Code of Criminal Procedure.

The Law No. 2016-1691 on transparency, the fight against corruption and the modernisation of economic life, enacted on December 9, 2016 (hereafter ‘the Sapin II Law’) is also a key legislation governing corruption that significantly strengthened anti-corruption measures in France. This law makes companies major players in the fight against corruption and embezzlement. It requires companies with more than 500 employees and revenues over 100 million euros to implement effective internal anti-corruption compliance programs. These programs must include in particular risk assessments, codes of conduct, internal control systems, training, accounting controls, and a whistleblowing mechanism.

The Sapin II Law also established the French Anti-Corruption Agency (AFA). In addition to its consulting missions, this agency is responsible for monitoring a company’s compliance with its due diligence obligations in terms of preventing corruption. In the event of non-compliance, it may also impose sanctions.

Alongside the AFA, there is the High Authority for the Transparency of Public Life (HATVP) which is an independent administrative authority in France responsible for promoting transparency and integrity in public life and preventing potential conflicts of interest among French public servants and officials. It reinforces the requirements of transparency and exemplarity to ensure the probity of public officials.

Any local prosecutor office has jurisdiction to investigate and prosecute bribery and corruption.

There is also a specialised institution in France to investigate and prosecute bribery and corruption. The French Financial Prosecution Office (Parquet national financier (PNF)) is a judicial institution that was established by the Law No. 2013-1117 of December 6, 2013, on the fight against tax fraud and major economic and financial crime. It is a specialised public prosecutor’s office that is responsible for major economic and financial crime including bribery and corruption. In 2023, the PNF was composed of 20 judges specialised in economic and financial matters, 8 specialised assistants, 2 legal assistants, and a dedicated registry service. If the PNF’s material jurisdiction is limited to the most serious and complex cases of economic and financial offences, it has jurisdiction throughout the territory of France and for infringements committed abroad if the perpetrator or the victim is French.

One of his most notorious cases is the compliance investigation into Airbus. The PNF, the British Serious Fraud Office (SFO) and the Department of Justice of the USA (DOJ) have been jointly investigating since 2016 irregularities involving commercial agents involved in aircraft sales contracts. In 2020, the French, British and American courts had approved settlement agreements made by Airbus and the PNF, the SFO and the DOJ, under which the group agreed to pay fines totalling 3.6 billion euros. Another settlement agreement was signed on November 17, 2022, between Airbus and the PNF that covers past matters relating to the use of intermediaries in sales campaigns prior to 2012, in particular related to Libya and Kazakhstan.

Furthermore, when a judicial information is open, investigating judges have jurisdiction to investigate bribery. For example, there is a financial division at the Paris Judicial Court, with investigating judges specialising in economic and financial offences.

Additionally, there are specialised investigation departments, the Central office for the fight against corruption and financial and tax offences (OCLCIFF) and the Central office for the repression of major financial offences (OCRGDF). Between them, these two investigative departments employ more than 165 investigators.

At an administrative level, the AFA can carry out investigations and controls within companies subject to the Sapin II Law to verify that efficient compliance programs are established. In 2022, the AFA had a multidisciplinary team of 51 agents.

French law incriminates both the active and passive form of corruption and influence peddling. This way, both the person offering the bribe and the person requesting or accepting it can be prosecuted.

According to the French Criminal Code:

• In its active form, corruption is defined as the fact of unduly proposing, directly or indirectly, offers, promises, gifts, presents, or any advantage, to a person, for the benefit of that person or a third party, so that this person accomplishes or abstains from accomplishing, or because he or she has accomplished or abstained from accomplishing, an act during his function.
• In its passive form, corruption is defined as the fact for a person of unduly soliciting or accepting, at any time, directly or indirectly, offers, promises, gifts, presents, or any advantage, for themselves or for a third party, to accomplish or having accomplished, to refrain or having refrained from accomplishing, an act during his function.
• In its active form, influence peddling is defined as unduly proposing offers, promises, gifts, presents, or any advantage, to a person, for the benefit of that person or a third party, so that this person abuses, or because this person has abused, of his or her real or supposed influence, so as to obtain from a public authority or administration, distinctions, jobs, public procurement, or any other favourable decision.
• In its passive form, influence peddling is defined as the fact for a person of unduly soliciting or accepting, at any time, directly or indirectly, offers, promises, gifts, presents, or any advantage, for themselves or for a third party, to abuse, or for having abused of his or her real or supposed influence, so as to obtain from a public authority or administration, distinctions, jobs, public procurement, or any favourable decision.

French law makes a clear distinction between public and private sector corruption, with separate definitions and penalties tailored to the nature of the office or position held by the individual involved.

Here’s how these distinctions are defined and categorised:

• Articles 432-11 and 433-1 of the French Criminal Code criminalise bribery of public officials. A ‘public official’ is defined as a person holding public authority, responsible for a public service mission, or vested with an elective public mandate.
• Articles 435-1 and 435-3 of the French Criminal Code criminalise bribery of foreign public officials. This incrimination specifically involves officials from other countries, often in the context of international business transactions. A ‘foreign public official’ is defined as a person holding public authority, responsible for a public service mission, or vested with an elective public mandate who operates in a foreign state or within an international organisation.
• Article 434-9 of the French Criminal Code criminalises bribery of judges and judicial officials (clerks or jurors).
• Articles 435-7 and 435-9 of the French Criminal Code criminalise bribery of foreign judges and judicial officials (clerks or jurors).
• Articles 445-1 and 445-2 of the French Criminal Code criminalise bribery of a private person.
• Articles 445-1-1 and 445-2-1 of the French Criminal Code criminalise bribery in the area of sports (an active participant in a sporting event or horse race where betting is involved).

While the definition of corruption remains the same, the expected outcome changes depending on the incriminations. For example, in the case of corruption of public officials, the desired outcome is that the public official performs or refrains from performing an act related to their position, mission, or mandate. For the corruption of private agents, the outcome is similar; it is that the latter performs or refrains from performing an act related to their activity or function, in violation of their legal, contractual, or professional obligations.

In France, both individuals and corporate entities can be held liable for bribery. We have a dual approach to liability aiming to deter and address corruption at all levels.

Individuals, such as company executives, public officials, or any persons who offer or accept bribes, can be held personally liable under the French Criminal Code.

Corporate entities can also be held responsible for acts of bribery committed on their behalf. Under French law, legal entities, except for the State, are criminally responsible for offences committed on their behalf by their bodies or representatives¹. Previously, legal entities could only be held liable for certain offences specified by law or regulation. However, since the Perben II Law of March 9, 2004, the criminal liability of legal entities has become general; legal entities can be held criminally liable for any offence. Thus, corporate entities can be held liable for bribery and corruption.

Furthermore, the criminal liability of legal entities does not exclude that of individuals who are authors or accomplices². Consequently, the liabilities are not mutually exclusive. Thus, the same offence may give rise to the criminal liability of both the individual and the legal entity on whose behalf the offence was committed.

It should also be noted that following a decision dated November 25, 2020, the French Cour de cassation decided to reverse a case law on the transfer of criminal liability resulting from a merger by way of absorption. An acquiring company may now, under certain conditions, be held criminally liable for offences committed by the absorbed company prior to the merger and for which it had not been convicted³. The French Cour de cassation specified that this reversal applies to mergers-acquisitions of companies falling within the scope of the EU Directive 2017/1132 of 14 June 2017. So only public limited companies (sociétés anonymes) and simplified joint-stock companies (sociétés par actions simplifiées) were affected by this decision. However, in a recent decision dated May 22, 2024, the French Cour de cassation decided to apply this solution to limited liability companies (sociétés à responsabilité limitée) as well.

Footnote(s):

¹ Article 121-2 of the French Criminal Code

² Article 121-2, paragraph 3, of the French Criminal Code

³ This solution only applies to merger transactions entered into after the ruling. However, in cases of fraud, i.e. where the purpose of the merger was to shield the acquired company from criminal liability, the solution may be applied retroactively.

In France, victims of corruption may seek damages through civil lawsuits against the perpetrators if they suffered a direct loss caused by the offence⁴ either before the criminal or the civil jurisdiction. The courts can order the convicted parties to pay compensation for the harm caused by their corrupt acts, which could cover financial losses, loss of business, and reputational damage.

Furthermore, the French Code of Criminal Procedure allows associations and foundations, under certain conditions, to claim damages. This is the case notably when the purpose of the association is the fight against corruption⁵.

Footnote(s):

⁴ Article 2 of the French Code of Criminal Procedure

⁵ Article 2-23 of the French Code of Criminal Procedure

Individuals who are found guilty of corruption or influence peddling of a public officials face a maximum of 10 years’ imprisonment and a maximum fine of 1 million euros, or up to twice the proceeds⁶.

The fine is increased to 2 million euros or, if it exceeds this amount, up to twice the proceeds of the offence, when the offences are committed by an organised group⁷.

For corruption and influence peddling in the private sector, individuals face up to a 5 years’ imprisonment and a maximum fine of 500 000 euros, or up to twice the proceeds⁸.

In addition, the French Criminal Code provides for optional additional penalties, such as:

• the ban on the exercise of civil, civic and family rights;
• the confiscation of the object used in or intended for use in committing the offence or the proceeds of the offence;
• the publication of the judicial decision; and
• the prohibition from exercising a public function or from exercising the activity within which the offence was committed.

Furthermore, individuals who have been convicted of corruption offences are excluded from the public procurement procedure⁹.

As regards to legal entities, the fine is multiplied by five (5 million euros and 2,5 million euros for corruption in the private sector)¹⁰.

Furthermore, legal entities found guilty of corruption offences are barred from bidding on public contracts for 5 years. This exclusion includes the possible termination of current contracts. In addition, the conviction for a corruption offence of a member of the management, administrative, executive or supervisory body or of a person who holds a power of representation, decision-making or control of a legal entity results in the exclusion from the public procurement procedure of that legal entity, for as long as that individual exercises those functions¹¹. This exclusion from public procurement processes can significantly impact the business operations of companies, especially those heavily reliant on government contracts. Thus, this penalty has a strong deterrent effect.

Footnote(s):

⁶ Articles 432-11 and 433-1 of the French Criminal Code

⁷ Ibid.

⁸ Articles 433-2, 445-2 and 445-1 of the French Criminal Code

⁹ Article L2141-1 of the French Public Procurement Code

¹⁰ Article 131-38 of the French Criminal Code

¹¹ Article L2141-1 of the French Public Procurement Code

Mechanisms similar to DPAs are available in France for handling cases of bribery and corruption. These are known as Judicial Public Interest Agreements (CJIPs) (1) and the guilty plea procedure (CRPC) (2).

1) Judicial Public Interest Agreements (CJIPs)

Introduced under the Sapin II Law in 2016, CJIPs can only be used by legal entities, not individuals, to settle allegations of corruption, influence peddling, and laundering of tax fraud before any charges are filed, thus avoiding a criminal trial and potential conviction.

The legislator’s intention nowadays is to increase the scope of the CJIPs. It was extended to include offences under the Environmental Code and related offences by the Law No. 2020-1672 of December 24, 2020, on the European Public Prosecutor’s Office, environmental justice and specialised criminal justice.

The French authorities, particularly the PNF, evaluate the eligibility of a company for a CJIP based on the nature of the offence, the extent of cooperation by the company, and the company’s history of similar offences.

Once an agreement is finalised, it must be validated by a judge, who ensures that the agreement is in the public interest and that the obligations are appropriate.

The validation of a CJIP will have several significant effects, which are quite favourable for the legal entity. Firstly, the validation of a CJIP will not entail a declaration of guilt and will in no way be assimilated to a declaration of judgment. Secondly, and consequently, a CJIP will not be entered in the legal entity’s criminal record but will simply be published on the website of the AFA. While CJIPs avoid a criminal conviction, the details of the agreement thus are made public, which can have reputational implications for the company involved.

Furthermore, the agreement typically requires the legal entity to pay a fine proportionate to the benefits derived from the wrongdoing, implement, or improve compliance programs, and possibly compensate any victims.

In a very short space of time, CJIPs have gradually become an indispensable tool and have been utilised in several high-profile cases, reflecting a significant shift in how France handles corporate corruption.

If CJIPs are very similar to DPAs in the US, there are, however, key differences between these two mechanisms. Indeed, DPAs typically require an admission of guilt, whereas CJIPs do not, which can have significant legal and reputational implications for the companies involved. Moreover, unlike DPAs, individuals implicated in the facts are expressly excluded from this mechanism. The introduction of CJIPs, which are reserved for legal entities, thus raises the question of what will happen to individuals and may pose problems, particularly regarding the presumption of innocence. Several practitioners have therefore suggested extending the scope of the CJIP to individuals.

2) The guilty plea procedure (CRPC)

There is also the guilty plea procedure, which was introduced in France by the Perben II Law of March 9, 2004, under the name of ‘comparution sur reconnaissance préalable de culpabilité‘ (CRPC).

Initially reserved for the trial of minor offences, since the Law No. 2011-1862 of December 13, 2011, the CRPC has been used for all offences where the defendant, who was an adult at the time of the offence, admits the charges against him or her.

However, the following are excluded:

• Offences of intentional and unintentional bodily harm punishable by a prison sentence of more than five years.
• Press offences.
• Political offences.
• Manslaughter.
• Offences of sexual assault punishable by a prison sentence of more than five years.

Using a procedural mechanism similar to that used to implement a CJIP during the pre-trial investigation, the investigating judge may, if the individual under investigation admits the facts and accepts the criminal classification chosen, decide, at the request of or with the agreement of the public prosecutor, the person under investigation and the civil party, to refer the case to the public prosecutor for the purpose of implementing a guilty plea procedure¹².

The person implicated is summoned to appear before the public prosecutor. The public prosecutor may propose one or more penalties and/or fines after verifying that the defendant admits to being the perpetrator.

The term of imprisonment must be less than 3 years and may not exceed half of the sentence incurred. The amount of the fine may not exceed the amount of the fine incurred¹³.

If this proposal is accepted by the individual, after a hearing which must be attended by his lawyer, it is submitted to a judge who may, if appropriate, approve it by order after a public hearing.

These two mechanisms, CJIPs and CRPCs, are complementary, as illustrated by the HSBC case. Indeed, on October 30, 2017, a CJIP was concluded between the PNF and the HSBC bank for acts including aggravated tax fraud laundering. The legal situation of the individuals likely to be involved in the disputed facts remained unresolved. Then, a year after the bank signed the CJIP, the managing director of HSBC entered into a CRPC.

Footnote(s):

¹² Article 180-1 of the French Code of Criminal Procedure

¹³ Article 495-8 of the French Code of Criminal Procedure

Article 17 of the Sapin II Law requires companies employing at least 500 employees, or belonging to a group of companies whose parent company has its registered office in France and whose workforce comprises at least 500 employees, and whose turnover or consolidated turnover exceeds 100 million euros, to implement a code of conduct defining and illustrating the various types of behaviour to be prohibited as being likely to constitute bribery or influence peddling. This code of conduct is included in the company’s internal regulations.

In 2020, the AFA published a guide¹⁴ on gifts and invitations for companies. The AFA recommends that companies develop a gifts and invitations policy and identify the risk of corruption posed by the offering, solicitation, or acceptance of gifts and invitations, particularly in relation to its activities, geographical location, and high-risk processes or functions. The company should then communicate its policy by any means to all the people to whom it applies to prevent any case of corruption.

The AFA later published, in September 2022, a practical guide¹⁵ called ‘Public officials: the risks of breaches of probity concerning gifts and invitations’ (our translation). In this guide, the AFA explains that a public official should not accept gifts or invitations in the exercise of their duties and describes the criminal and disciplinary sanctions that can occur in case of acceptance. The guide offers suggestions to help public officials and agents identify the risk scenarios they may be exposed to by accepting gifts and invitations, and to protect themselves by defining a set of appropriate rules.

Footnote(s):

¹⁴ La politique cadeaux et invitations dans les entreprises, les EPIC, les associations et les fondations, AFA Guide of 2020,  available on : Guide pratique cadeaux DEFINITIF (agence-francaise-anticorruption.gouv.fr)

¹⁵ Agents publics : les risques d’atteintes à la probité concernant les cadeaux et invitations, AFA Guide of 2022, available on : GuideCadeauxInvitationsAgentspublics_AFA_Web.pdf (agence-francaise-anticorruption.gouv.fr)

Political contributions are heavily regulated in France. Since 1988, and following various scandals, several laws have been adopted to ensure transparency in public life, prevent undue influence in the political process and limit the risks of corruption.

Firstly, French legislation organises the transparency and control of political accounts through an independent administrative authority, the National Commission for Campaign Accounts and Political Financing (CNCCFP).

Then, only individuals can make political contributions. Since 1995, legal entities are strictly prohibited from contributing to political campaigns or parties.

Also, there are strict limits on the amount an individual can contribute. For financing election campaigns, the maximum contribution is 4,600 euros per campaign¹⁶. For financing political parties, the maximum contribution is 7,500 euros per year¹⁷.

Furthermore, political parties receive State aid in return for the ban on donations from companies or other legal entities. Each year, the amount of State aid is set by the Finance Act. Public aid is divided into two equal fractions¹⁸. The first fraction is allocated on a proportional basis according to the number of votes received in the first round of legislative elections. The distribution of the second fraction depends directly on the number of deputies and senators who have declared their party affiliation.

Finally, elected officials are required to declare their assets at the beginning and end of their term, which is controlled by the new High Authority for the Transparency of Public Life.

Footnote(s):

¹⁶ Article L52-8 of the French Electoral Code

¹⁷ Article 11-4 of the Law No. 88-227 of March 11, 1988, on the financial transparency of political life

¹⁸ Article 9 of the Law No. 88-227 of March 11, 1988, on the financial transparency of political life

As explained by the AFA, a facilitation payment is ‘a sum paid by an individual to a public official to obtain, facilitate, or expedite an administrative procedure that the individual has the right to expect’¹⁹ (our translation).

Under French law, a facilitation payment constitutes a corruption offence and is therefore prohibited. The AFA published some guidelines for companies and individuals when faced with requests of facilitation payments. For example, the AFA strongly recommends that companies include provisions on facilitation payments in their code of conduct aimed at banning them²⁰.

Footnote(s):

¹⁹ Point sur la problématique des paiements de facilitation, AFA, October 2023, available on : Présentation PowerPoint (agence-francaise-anticorruption.gouv.fr)

²⁰ Recommendations of the AFA, December 4, 2020, available on : https://www.agence-francaise-anticorruption.gouv.fr/files/files/Recommandations%20AFA.pdf

There is no specific defence to the offence of bribery or corruption in French law. The general defences, such as necessity or insanity, can be applied to bribery and corruption offences. In practice, however, this is never the case, as these defences are not really intended to apply to acts of corruption.

Taking the initiative to report wrongdoing and having a strong compliance program are factors that can reduce or eliminate liability for bribery offences.

The guidelines on internal investigations published in March 2023 by the PNF and the AFA explicitly state that ‘the early and truthful reporting by the company to the judicial authorities of the criminal acts of which it is aware, and the communication of the internal investigation carried out, will be factors that will reduce any fine imposed by the CJIP’²¹ (our translation).

Footnote(s):

²¹ Les enquêtes internes anticorruption, AFA Guide of March 2023, available on : AFA_Guide_EnqueteInterne_Web.pdf (agence-francaise-anticorruption.gouv.fr)

One of the primary sources of guidance are the detailed recommendations and guidelines provided by the AFA to both public and private entities. The AFA’s website (https://www.agence-francaise-anticorruption.gouv.fr/) provides access to all published guidelines, practical guides, and other resources.

These guidelines are designed to help companies comply with the requirements of the Sapin II Law, which mandates the implementation of anti-corruption measures. The goal is to help companies to prevent and detect corruption and influence peddling.

Moreover, the AFA publishes practical and comprehensive guides that provide step-by-step instructions on specific aspects of anti-corruption compliance, such as handling gifts, invitations and facilitation payments, conducting due diligence, and managing conflicts of interest.

French law provide protection to whistleblowers. The main framework for this protection is established under the Sapin II Law and the Law No. 2022-401 of March 21, 2022. The AFA also provides guidelines and support to companies in implementing effective whistleblowing procedures.

A whistleblower is defined as a person who discloses or reports, in a disinterested manner and in good faith, a crime, an offence, a serious and clear violation of an international commitment regularly ratified or approved by France, a unilateral act of an international organisation based on such a commitment, European Union law, national law or regulations, or a serious threat or harm to the public interest.

Whistleblowers are protected from retaliation, including dismissal, demotion, harassment, or any discriminatory measures taken in response to their disclosures. Employers are prohibited from retaliating against whistleblowers, and any such actions can be challenged in court.

To ensure the effectiveness of this protection, the identity of the whistleblower, the information disclosed, and the individuals involved in the disclosure are to be kept confidential.

For the whistleblower to avoid criminal liability, the disclosure must be necessary and proportionate to safeguard the public interest at stake. If not, the whistleblower would not be granted immunity from criminal and civil liability.

In contrast with some countries, French authorities do not offer financial incentives or rewards to whistleblowers. The emphasis in France has been on creating a secure and supportive environment for whistleblowers rather than providing monetary rewards.

According to a Eurobarometer survey²² conducted in the spring of 2022, 64% of French people consider corruption to be widespread in France. 7% say they have already been victims of corruption. In response to this situation, French authorities have been increasingly investigating bribery allegations.

In 2021, public prosecutor’s offices dealt with 900 corruption offences. The 900 cases involved 1,379 perpetrators, including 301 legal entities. Lack of evidence meant that 55% of the perpetrators (759) were not considered liable to prosecution. Of the 620 perpetrators who were liable to prosecution, 572 were subject to criminal indictment on corruption charges. 451 corruption offences, compared to 364 in 2020, resulted in individual convictions²³.

Between October 2017 and the end of 2022, the AFA carried out 198 audits and examinations, including :

• 129 audits and examinations of business entities subject to Article 17 of the Sapin II Law, 69 audits of public-sector entities; and
• 20 audits and examinations relating to remediation audits, 152 initial audits and 26 follow-up audits²⁴.

In 2023, the PNF had 781 cases in progress, including 300 procedures initiated in 2023 and 234 closed²⁵. In comparison, in 2020, it had only 601 cases in progress.

Footnote(s):

²² AFA’s Website, October 19, 2023, available on : Préparation du Plan national de lutte contre la corruption 2024-2027 : consultation publique | Agence française anticorruption (agence-francaise-anticorruption.gouv.fr)

²³ AFA’s Annual Report 2022, available on : https://www.agence-francaise-anticorruption.gouv.fr/files/files/RA_AFA_2022_Web.pdf

²⁴ Ibid.

²⁵ PNF’s Annual Report 2023, available on: https://www.tribunal-de-paris.justice.fr/sites/default/files/2024-02/PlaquettePNF.pdf

Recent and emerging trends in investigations and enforcement reflect France’s commitment to enhancing corporate accountability and combating corruption.

For example, French agencies and authorities are increasingly collaborating with international counterparts to investigate and prosecute cross-border corruption cases. This includes cooperation with European and global institutions, reflecting the international nature of many corruption schemes.

Another major trend in France is the increasingly frequent use of CJIPs. Indeed, the use of DPAs, known in France as CJIPs, is becoming more and more common. Since the Sapin II Law came into force and as of December 31, 2023, 54 CJIPS were concluded, including 20 that have been concluded and validated in France by the PNF²⁶. The use of CJIPs in France has thus become an effective tool in addressing bribery and corruption. This mechanism accelerates the resolution of cases and underscores the importance of corporate compliance. This approach is also closely linked to the relationship between lawyers and judges. By fostering dialogue and mutual trust, these legal professionals can negotiate CJIPs more effectively.

Footnote(s):

²⁶ Ibid.

For a long time, there were no judicial review of legislation in France. The constitutional reform of July 23, 2008, then introduced the ‘priority question of constitutionality’ (QPC). This procedure is the right for any person who is involved in legal proceedings before a court to argue that a statutory provision infringes rights and freedoms guaranteed by the French Constitution. The court should immediately decide whether the question should be admitted.

The criteria for a QPC to be admitted are that:

• the challenged legislative provision must apply to the dispute or procedure;
• it must not have already been declared as constitutionally valid by the Constitutional Council; and
• the question must be of a serious or novel nature.

If the court admits the question, it then sends it to the supreme jurisdiction of its order. Administrative courts would therefore send a QPC to the French Conseil d’Etat, and civil and criminal courts would send it to the French Cour de cassation. If the supreme jurisdiction agrees that the QPC is admissible, it then sends it to the Constitutional Council.

The Constitutional Council must render its decision within 3 months. The current dispute is therefore suspended pending the decision of the Constitutional Council. The parties may submit written observations and lawyers can make oral submissions.

If the Constitutional Council finds that the challenged provision is constitutional, the court where the question originated must proceed with its case and apply the legislation.

If the Constitutional Council finds that the provision is unconstitutional, then it is revoked and can no longer apply. However, the Constitutional Council may also impose transitional measures, modulating the effects of the abrogation over time or postponing the date of repeal to allow the legislature to fill any legal void.

The transposition into French law of the European directive on the protection of whistleblowers by Law No. 2022-401 of March 21, 2022, introduced several changes to the whistleblower protection system introduced by the Sapin II Law.

These modifications made it necessary to amend the guidelines that had been adopted by the National Commission on Informatics and Liberty (CNIL) on July 18, 2019.  Accordingly, on July 24, 2023, the CNIL published a new reference framework relating to the processing of personal data intended for the implementation of a whistleblowing system, in order to take account of changes in the law applicable to professional whistleblowing.

The guidelines published by the CNIL aim to help organisations bring their systems for collecting and managing professional alerts into line with the rules governing the protection of personal data, by providing recommendations. These standards are not binding on organisations. Nevertheless, the CNIL specifies that organisations that comply with this standard benefit from a presumption of conformity of their data processing relating to professional alerts.

Furthermore, there is a legal obligation to set up a vigilance plan for certain companies employing at least 5,000 employees in their group and headquartered in France, or at least 10,000 employees and headquartered outside of France²⁷. The vigilance plan must include the reasonable vigilance measures to identify risks and prevent serious harm to human rights and fundamental freedoms; health and personal safety; as well as environment. If a company fails to comply with its vigilance obligations, it may be given formal notice to rectify the situation. If it fails to do so within three months of the receipt of the notice, it may be taken to court by any person or legal entity with an interest in the matter.

The first ruling on the duty of vigilance was handed down on December 5, 2023, by the Paris Judicial Court who assessed the compliance of the measures implemented by a company, namely La Poste, as part of its vigilance plan. The Court issued an injunction against the company, requiring it to supplement its vigilance plan with a mapping of risks designed to identify, analyse, and prioritise risks; processes for assessing subcontractors; a mechanism for alerting and collecting reports after consulting the trade unions; and to publish a concrete monitoring of vigilance measures.

Also, on January 15, 2024, the Paris Court of Appeal announced the creation of a chamber dedicated to emerging litigation, in charge of disputes linked to the duty of vigilance and environmental liability cases²⁸.

Footnote(s):

²⁷ Article 225-102-4 of the French Commercial Code

²⁸ https://www.cours-appel.justice.fr/paris/creation-dune-chambre-des-contentieux-emergents-devoir-de-vigilance-et-responsabilite

France is aware of the need to fight corruption effectively and resolutely, both to ensure that our economy operates transparently and to strengthen confidence in institutions. The next national anti-corruption plan (2024-2027) is thus currently being prepared. It will include a section dedicated to preventing breaches of probity.

On October 19, 2021, a bill was submitted to amend the Sapin II Law, following the report on the evaluation of the law published on July 7, 2021. The proposed changes include:

• the extension of the scope of entities subject to the provisions of Article 17 of the Sapin II Law and likely to be controlled by the AFA (by removing the requirement that the parent company’s registered office be located in France) ;
• the extension of the scope of offences concerned by the conclusion of a CJIP (by adding the offence called ‘délit de favoritisme‘ which aims to punish infringements of the freedom of access of candidates to public contracts) ; and
• the reinforcement of the rights of individuals during an internal investigation, along the lines of the rights of persons in police custody.

Also, Bruno le Maire, the French Minister of the Economy, has announced on X that he intends to continue the fight against corruption, the ‘worm that can rot the fruit of democracy’²⁹ (our translation). He posted his message on December 9, 2023, to mark UN International Anti-Corruption Day. No further details were given for the time being, he simply stated that the future anti-corruption plan will concern both private companies and the public sector.

Finally, on a European level, the European Commission is taking decisive action to fight corruption in the EU and worldwide. The Commission proposed, in May 2023, a new directive on combatting corruption. The proposal modernises the existing EU anti-corruption legal framework by raising awareness of corruption, setting up specialised anti-corruption bodies and harmonising definitions of criminal offences prosecuted as corruption. Given the lack of transparency in procedures for waiving immunities, the Commission proposes that Member States establish an objective, impartial and effective process for waiving immunities. The proposal also increases the level of criminal sanctions for individuals and legal entities and harmonises aggravating and mitigating circumstances. If the directive is finally adopted, it will have to be implemented into French law.

Footnote(s):

²⁹ Loi anti-corruption : Bruno Le Maire annonce un futur plan pour lutter contre ce « ver qui peut pourrir la démocratie » (francetvinfo.fr)

France is party to the United Nations Convention Against Corruption (UNCAC) which has been adopted by the UN General Assembly in October 2003 and entered into force in December 2005. This convention provides a comprehensive framework to prevent and combat corruption globally.

France has also ratified the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions on July 11, 2005. This convention, adopted in 1997 by the OECD, establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions.

Furthermore, France ratified in 2008 both the Council of Europe Criminal Law Convention on Corruption and the Civil Law Convention on Corruption.

Finally, as a member of the European Union, France is subject to various EU anti-corruption directives aimed at preventing and combating corruption within the EU. For example, there is the Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of the EU Member States, adopted by the Act of the Council of the EU on May 26, 1997. This convention aims to ensure that each EU country takes the necessary measures to criminalise corruption involving public officials and is designed to fight corruption involving European officials.

The concept of legal privilege is extensive and is considered, in France, as a fundamental duty of lawyers. Professional secrecy is of public order³⁰. It covers all communications between a lawyer and their client, as well as any information or documents exchanged while providing legal advice or representation. Professional secrecy is general, absolute, and unlimited in time. The lawyer is bound by this obligation and may not break it, if necessary, except for the strict requirements of his own defence before any court. A violation of professional secrecy could lead to both criminal and disciplinary sanctions.

In France, legal privilege provides robust protection for communications and documents related to lawyer-led investigations when conducted by external counsel. Indeed, in the context of lawyer-led investigations, external lawyers enjoy full professional secrecy. This means that documents and communications related to the investigation, including interviews, emails, and reports, are protected from disclosure. This protection is further emphasised by the National Council of French Bars in its a Guide ‘French lawyer in Internal Investigations’³¹.

The situation for in-house counsels is different as they are not considered independent lawyers under French law because they are employees of the company they serve. Consequently, the professional secrecy protections afforded to external counsel do not apply to in-house counsel. Thus, documents and communications from in-house counsel are not protected by professional secrecy under French Law.

However, a bill proposal aims to establish confidentiality for in-house counsels. The Law Proposal No. 2033 on the confidentiality of consultations by in-house counsels was submitted to the National Assembly on December 21, 2023³². Several conditions are laid down for confidentiality to apply, including that in-house counsels must have undergone training in ethical rules and that their advice must be marked ‘confidentiel – consultation juridique – juriste d’entreprise‘. However, the proposed law places limits on this confidentiality. It will be excluded in tax or criminal proceedings, which means that the company will have to provide judges or the tax authorities with all the advice requested. Nor will it be enforceable against the authorities of the European Union as part of their powers of control. On April 30, 2024, the National Assembly passed the bill on first reading, with amendments, by 38 votes to 34. The bill must now be examined by the Senate³³.

In any case, only the client can waive professional secrecy, not the lawyer. The joint guidelines published by the PNF and the AFA on June 26, 2019 states that not all documents contained in the internal investigation report are necessarily covered by legal privilege. The 2023 Guidelines clearly states that: ‘In any event, as the law state of the law and jurisprudence, regardless of the quality of the members of the investigation team, the document drawn up at the end of the internal investigation is not protected’³⁴ (our translation).

Footnote(s):

³⁰ Article 2.1 of the National Professional Rules of Lawyers

³¹ L’avocat français et les enquêtes internes, National Council of French Bars’ Guide of 2020, available on :  guide-cnb_enquetes-internes_juin2020.pdf

³² https://www.assemblee-nationale.fr/dyn/16/textes/l16b2033_proposition-loi

³³ On February 14, 2024, the Senate passed on first reading a similar bill aimed at guaranteeing the confidentiality of legal advice given by in-house counsels.

³⁴ Les enquêtes internes anticorruption¸ AFA and PNF, March 2023, page 17, available on : https://www.agence-francaise-anticorruption.gouv.fr/files/files/AFA_Guide_EnqueteInterne_Web.pdf

France places significant importance on tackling bribery and corruption, demonstrated through a comprehensive legal framework, active enforcement agencies, and participation in international anti-corruption efforts.

The establishment of the PNF and the AFA has improved France’s capability to investigate and prosecute complex bribery cases. The creation of the PNF particularly signifies France’s robust stance against corruption by providing a specialised body to address financial crimes. Its role in handling high-profile cases and enhancing international cooperation illustrates France’s dedication to maintaining financial integrity and transparency.

Also, the French authorities and agencies actively promote awareness of anti-corruption laws and ethical standards through education and training programs for companies and public sector employees.

The 2023 Corruption Perception Index published by NGO International Transparency ranks France at 20 out of 180 countries with a global score of 71/100³⁵.

Even though there is still much work to be done to combat corruption in France, the trends are towards positive developments. This is particularly evident in the OECD Phase 4 report on France³⁶ which is a part of the OECD Working Group on Bribery’s continuous monitoring process to assess the implementation and enforcement of the OECD Anti-Bribery Convention. The Phase 4 report recognises France’s significant strides in combating foreign bribery through legal reforms and enhanced enforcement mechanisms. However, it also underscores the need for continued efforts, particularly in resource allocation, judicial efficiency, and whistleblower protections, to ensure sustained progress in the fight against corruption.

Footnote(s):

³⁵ Corruption Perceptions Index, International Transparency, available on : https://www.transparency.org/en/cpi/2023/index/fra

³⁶ Mise en œuvre de la Convention de l’OCDE sur la lutte contre la corruption, Rapport de Phase 4, OCDE 2021, available on : Rapport de Phase 4 : France (oecd.org)

Prevention is an essential part of the fight against corruption in France and overall, organisations in France are taking the prevention of bribery and corruption very seriously.

The French authorities are aware that preventing corruption is the key to reducing breaches of probity. The AFA, for example, plays a crucial role in guiding and monitoring organisations to ensure they comply with anti-corruption laws. The agency conducts audits and provides detailed guidelines, which has led to increased diligence among companies to avoid sanctions and reputational damage.

Also, the enactment of the Sapin II Law in 2016 has been a cornerstone in the prevention of corruption as it has mandated companies that match certain criteria to implement anti-corruption compliance programs. These programs must include a code of conduct, training programs for employees and a risk mapping to identify and assess corruption risks. All these measures play an important and conclusive role in preventing corruption.

However, in April, the Council of Europe’s anti-corruption body (GRECO) published France’s compliance report following its recommendations on preventing corruption³⁷. It concluded that France does not sufficiently comply with the recommendations made and the government will be asked to provide a progress report by March 2025.

Finally, several associations and NGOs are working to combat corruption in France. This is particularly true for Anticor, an NGO founded in 2002 that specialises in handling corruption cases and raising public awareness about ethical issues in politics. Sherpa is an international non-governmental organisation, founded in 2001, which carries out advocacy, litigation and legal research, in order to strengthen economic actors’ accountability and build up a legal framework that better protects the environment, communities and human rights. These two associations are working hard to fight corruption in France. For example, in June 2022, Anticor and Sherpa were civil parties in a judicial investigation opened in 2013 targeting companies in the Bolloré Group. These companies were suspected of having financed the re-election of Faure Gnassingbé, the President of Togo.

Footnote(s):

³⁷ Second Compliance Report – France, GRECO, 10 April 2024, available on : https://rm.coe.int/fifth-evaluation-round-preventing-corruption-and-promoting-integrity-i/1680af36e8

Enforcement agencies and regulators in France face several significant challenges when investigating and prosecuting cases of bribery and corruption, including:

• the sophistication of corruption schemes and the development of new technologies;
• the difficulty to collect evidence because of the cross-border nature of corruption (particularly if the foreign state is uncooperative); and
• the lack of resources as investigating corruption cases require significant resources, including specialised personnel, technology, and financial support³⁸.

To tackle these challenges, the French government has increased funding and resources for key agencies like the PNF and the AFA and has strengthened its collaboration with international bodies. This is a work in progress, particularly given that the resources available to the justice system are often criticised in France.

Furthermore, French authorities have adopted advanced technologies and forensic tools to improve the detection and investigation of corruption. This includes data analytics and cyber forensics.

Footnote(s):

³⁸ 130 specialised financial judges have written an article condemning the lack of resources in the French justice system, available on: https://www.lemonde.fr/idees/article/2024/04/08/l-appel-de-130-magistrats-financiers-specialises-la-lutte-contre-la-delinquance-financiere-est-un-investissement-vital-pour-la-democratie-et-l-etat-de-droit_6226634_3232.html

Internal investigations pose challenges to the companies, including the following:

• Finding evidence: companies often have to search through vast amounts of data to identify signs of corruption, including financial records, emails, and other communications, and go back into their archives.
• Treatment of the data collected: data protection regulations, such as the GDPR in France, can limit the ability to collect and transfer data necessary for investigations.
• Employee resistance: employees may be reluctant to cooperate with investigations due to fear of retaliation or personal involvement in the facts.
• Limited resources: small and medium-sized companies might lack the financial and human resources to conduct thorough investigations or to hire a law firm.
• Deciding the outcome of the internal investigation: companies must make a choice when the internal investigation report reveals the existence of criminal acts. They may decide to report the facts to the public prosecutor’s office in order to conclude a CJIP, to simply report the matter or to do nothing because they believe, without any certainty, that no investigation will take place.

French authorities have implemented several strategies to address the challenges posed by the significant increase in electronic data during investigations and prosecutions of bribery and corruption offences. Investigators have tried to find new technological solutions to process the significant increase of electronic data.

French enforcement agencies have adopted advanced forensic tools to manage and analyse large volumes of electronic data. These tools help in extracting, processing, and analysing data from various digital sources, including emails, financial records, and digital communications.

Also, agencies have been using Big Data and artificial intelligence to handle large volumes of data. One common instrument is the technology assisted review (TAR) which is the use of artificial intelligence and algorithms to identify relevant documents based on input from expert human reviewers.

Furthermore, the French Financial Markets Authority (AMF), which is an independent public body that is responsible for safeguarding investments in financial instruments as well as maintaining orderly operation of the markets, uses machine learning to detect market anomalies and abuse. In 2016, it developed a platform, called the ICY, based on Big Data technologies. It enables the investigators to rapidly exploit data representing large volumes and of diverse natures. In 2019, the platform absorbed 24 billion lines of data for example³⁹.

Footnote(s):

³⁹ Artificial intelligence and Big Data, a reality at the AMF, AMF’s Website, 5 October 2020, available on: https://www.amf-france.org/fr/actualites-publications/actualites/intelligence-artificielle-et-big-data-une-realite-lamf

Over the next 18 months, businesses in France are likely to face several significant bribery and corruption-related challenges. These challenges will stem mainly from evolving regulatory environments, increased enforcement actions, and the need for enhanced compliance measures.

With the increasing use of CJIPs, one of the challenges for companies will be to learn how to negotiate with the judicial authorities.

Similarly, with the PNF and AFA intensifying their enforcement actions, companies may face more frequent investigations and prosecutions related to bribery and corruption.

In addition, companies will have to pay close attention to reform proposals and regulatory changes. Businesses will need to ensure that their compliance programs are up to date. Thus, companies must invest in legal and compliance expertise to monitor changes in regulations and implement necessary adjustments promptly.

More importantly, the fate of directors or executives of a company that concluded a CJIP is an unresolved issue that requires particular attention. The importance of this issue is perfectly illustrated by the Bolloré affair.  On February 26, 2021, the Paris Judicial Court refused to approve the agreements reached between the individual defendants and the PNF in the context of the requested CRPCs, while validating a CJIP for the benefit of the legal entity, Bolloré SE, being prosecuted in the same case. This refusal to approve the CRPCs of the directors combined with the validation of the CJIP poses a serious problem as the facts were acknowledged. Individuals thus find themselves in a situation where they are going to be tried in court even though they have admitted the facts to benefit from CRPCs and the legal entity has entered into a CJIP.

To improve the legal framework and process for preventing, investigating, and prosecuting cases of corruption, it could be interesting to:

• Encourage the use of internal investigations.
• Strengthen the resources of the AFA and the PNF.
• Extend the scope of the offences covered by CJIPs.
• Address the situation of individuals involved (directors and executives) when a CJIP is concluded with a legal entity.
• Improve the relationship between lawyers and judges by fostering dialogue and mutual trust.