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The French anti­corruption policy: more settlements with corporations and harsher prosecutions against individuals

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23 July 2020

On June 2, 2020, the French Minister of Justice issued a circular to prosecutors (i.e. administrative guidelines) setting out the criminal policy in the fight against international corruption (the Circular)1.

The Circular highlights the heightened willingness of authorities to combat corruption­-related offences and to strengthen prosecution against individuals. It emphasises the instrumental role played by the National Financial Prosecutor's Office (i.e. the parquet national financier, the PNF) in this fight and strongly encourages corporations to voluntarily self­-disclose internal suspicions of corrupt practices.

The PNF should continue to handle international corruption cases

The Circular explains that since its inception in 2014, the PNF consistently distinguished itself on the international scene as a major player in the fight against corruption, including by effectively cooperating with foreign judicial authorities, notably with US and UK ones, in order to reach global settlements of major investigations (see the "Société Générale" and "Airbus" cases)2. The Circular calls for a centralisation of all international corruption cases with the PNF.

The multiplication of channels enabling the reporting of corrupt practices and the praise of self­-disclosure

The Circular lists the multiple information channels through which prosecutors may become aware of potential acts of corruption, and in particular:

  • Public servants who have a duty to report to criminal authorities any facts which they believe may constitute a criminal offence under French law;
  • Statutory auditors, judicial administrators and legal agents who also each have a similar duty to notify of such facts to public prosecutors;
  • The French Anti­-Corruption Agency, the Banking and Financial regulators, as well as the Competition authority and the High authority for transparency in public life;
  • The French Financial Intelligence Unit, which receives thousands of suspicious activity reports from regulated entities each year, an increasing proportion of which is tied to potential corrupt practices;
  • Anti­-corruption associations (e.g. Sherpa, Anticor and Transparency International); and
  • More and more frequently whistle­-blowers whose protection was significantly increased by the so­ called French “Sapin II law” enacted by the end of

The Circular calls for self­-disclosure by corporations, stressing that although neither the latter nor their directors may be under any reporting duties, by volunteering facts they can expect an informal leniency and further position themselves to reach a French­-style Deferred Prosecution Agreements (a DPA) as far as corporations are concerned (i.e. individuals may only settle via a guilty plea). Interestingly, the PNF is also invited to open discussions with employers' unions in order to identify an adequate framework for such self-­disclosure to be more legally secured.

Running comprehensive investigations into corruption schemes and cracking down on individuals

The goal set by the Circular is to thoroughly identify the financial circuit and all of the individuals and legal entities involved in the corruption scheme, including by investigating foreign parties with no presence in France. International corruption cases are therefore meant to have a wide scope and the Circular recalls that a variety of legal qualifications may apply to or in the context of corrupt practices under French law, including:

  • Influence peddling of foreign public officials;
  • Money-­laundering and concealment of the proceeds of a crime (recel
  • Misappropriation of corporate assets and breach of trust;
  • Fraud and forgery;
  • Publication or presentation of annual accounts that are not true or accurate; and
  • Tax

The Circular openly calls for the strengthening of prosecution against individuals involved in corruption schemes, in particular against employees, managers, and individuals outside the company. It confirms that when assessing the adequate procedural route, either a guilty plea or a referral before a French criminal court, prosecutors should take into account the individual’s criminal record, degree of involvement, their recognition of the targeted facts as well as their level of cooperation.

With respect to legal entities, the Circular clarifies the criteria which the French Minister of Justice expects prosecutors will take into account to assess whether a DPA should be explored: the absence of a prior conviction, the voluntary disclosure of facts and the degree of cooperation.

1 http://www.justice.gouv.fr/bo/2020/20200611/JUSD2007407C.pdf
2 CJIP « Airbus » of January 31, 2020; CJIP « Société Générale » of June 4, 2020