BRIBES (French Edition)

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Learn more about Amazon Prime. Get fast, free shipping with Amazon Prime. Get to Know Us. The offence is also defined in the private and commercial sector as the act of directly or indirectly making offers, promises, gifts, presents or other advantages to a person who is not a public official but holds or occupies a management position or any occupation for a private person, whether natural or legal, or for any other body, in order to obtain the performance or non-performance of an action in relation with his or her occupation or position.

Are specific restrictions in place regarding the provision of hospitality eg, gifts, travel expenses, meals and entertainment? If so, what are the details? The Criminal Code does not provide specific rules on the provision of hospitality, but rather prohibits any kind of offer, promise, gift, present or other advantage that would serve as a bribe.

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However, there are specific rules for certain industries eg, the pharmaceutical industry. Article L of the Public Health Code prohibits companies which manufacture or market medicinal products from offering any benefits, either directly or indirectly, in cash or in kind, to healthcare professionals, medical practitioners, students or associations representing them. There are no specific rules in relation to facilitation payments.

Contrary to the US Foreign Corrupt Practices Act, there is no derogation regarding facilitation payments in France, and they are therefore prohibited. Can both individuals and companies be held liable under anti-corruption rules in your jurisdiction? In respect of companies, Article of the code specifically provides that corporate entities can be held liable for offences committed on their behalf by their organisation or representatives.

The corporate criminal liability does not exclude the possibility of prosecuting an individual for the same offence. Therefore, a managing director can be held liable for acts committed within his or her company. Can agents or facilitating parties be held liable for bribery offences and if so, under what circumstances? Article and Article of the Criminal Code provide that an accomplice of the offence is as punishable as the perpetrator, with the same penalties.

Pursuant to Article of the Criminal Code, a criminal offence is considered to be committed on French territory when one of its constituting elements took place in France. Therefore, in theory, any company, regardless of its nationality, can be prosecuted in France if the act of corruption took place in France.

However, in practice, France is often criticised for being lax regarding fighting transnational corruption cases and foreign companies are rarely prosecuted by the French public prosecutor. In the past 15 years, there has been only one example of a conviction by the Paris Court of Appeal Total , February In accordance with Article 21 of the Sapin II Law Articles and of the Penal Code , if a foreign company has all or a part of its economic activity in France, then French courts will be competent to hear the case, even if the acts of corruption were not committed in France.

In light of other French regulations, the threshold for considering that an organisation has part of its present activity in France could be relatively low ie, based on a few operations in France only. The Sapin II Law has created a judicial status for whistleblowers and sets forth protective measures. A whistleblower is an individual who is deemed to be acting in a selfless manner, which means not routinely alerting or reporting wrongdoings.

The whistleblower must report in good faith ie, have sufficient grounds to believe that the facts and risks reported are accurate.

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He or she must also have had personal knowledge of the alleged facts. However, the protective status of the whistleblower does not preclude liability in the event of misreporting. Further, the benefit of this protection is subject to compliance with the whistleblowing process Article 10 I 1 of the Sapin II Law. Such whistleblowing process consists of three levels and requires the organising internal procedures for the collection of alerts:.

Reports must be made to the immediate or indirect supervisor, the employer or a referee designated by the employer. If no action is taken within a reasonable period to check the admissibility of the report, the whistleblower may refer the matter to the judicial or administrative authority or professional orders. If the report is not processed by one of the three bodies within three months, the whistleblower may disclose the facts to the public. Only in the event of serious and imminent danger or a risk of irreversible damage can the whistleblower refer directly to judicial or administrative authorities or professional orders.

The Sapin II Law compels legal entities that are governed by private or public law and that have at least 50 employees to put in place such a whistleblowing process. The details of this obligation were specified by Decree on April 19 , which became effective on January 1 by virtue of Article 8 of the decree. Companies must determine the best legal instrument to meet these obligations and implement them in accordance with the legislation Article 1 of the decree. The Sapin II Law also punishes obstructions to whistleblowing.

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If so, what process must be followed? Because of cultural differences with the common law system in the United Kingdom, the French legal system is not keen on encouraging self-reporting. It is therefore unusual for companies to voluntarily report an offence to the French public prosecutors or regulatory authorities. The only field where French law has allowed leniency programmes is in antitrust matters.

Like in the United States, companies in France can report cartel activity to the French authorities in order to avoid or reduce penalties. Under the French system, the company which is the first to report cartel activity that the authority is not already aware of can benefit from total immunity. Other companies which wish to report illegal activity and cooperate with the French authorities can be offered a fine reduction.

In relation to corruption, there is no such leniency programme in the existing legal framework, which means that self-reporting is still not an option that would be legally encouraged. Is it possible for anti-corruption cases to be settled before trial by means of plea bargaining or settlement agreements? One of the main new legal tools set out by the Sapin II Law has established an off-setting agreement inspired by the deferred prosecution in United States called judicial convention of public interest or penal transaction.

This off-setting agreement provided for in Article 22 of the Sapin II Law can be proposed by a public prosecutor or the investigating judge to companies that are under investigation. However, it seems possible that it could also be made following self-reporting. The procurator may propose that the legal person conclude an agreement containing one or more of the following obligations: Before entering into force, this off-setting agreement must be validated by a judge.

The validation order does not qualify as a conviction and does not produce the effects of a conviction judgment. This off-setting agreement does not prohibit action against directors. Further, it does not seem to obstruct the prosecution and conviction of a company for the same acts by foreign authorities. This risk must be considered because of the publicity of the agreement, which is the subject of a press release and the publication of the validation order on the French Anti-corruption Agency website.

The company will then have to assess the possible consequences in other countries before concluding an off-setting agreement. On October 30 , in a case involving HSBC, a precedent was set in respect of the implementation of the public interest agreement:. This complementary penalty should lead companies to consider voluntary self-disclosure or subsequent cooperation in exchange for a more lenient fine. Are any types of payment procedure exempt from liability under the corruption regulations in your jurisdiction?

There are no general defences in French regulations on corruption. However, the defendant can challenge the material element of the offence and the intent of committing the offence. Article of the Criminal Code requires the intent of the defendant as a legal basis for the conviction. Another defence that can be used by companies is that the bribe was not made by an organisation or representative of the company, since such condition is required by the law.

Contrary to the UK Bribery Act, there is no such defence for companies as that based on the implementation of an adequate compliance programme. However, the French draft legislation foresees the possibility of imposing an obligation on companies to implement a compliance programme. It is unclear whether these criteria will be alternative or cumulative. It is also unclear whether the draft legislation will contain guidelines similar to those set out by the UK Bribery Act.

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What compliance procedures and policies can a company put in place to assist in the creation of safe harbours? The Sapin II Law considerably improves risk management by imposing a compliance programme on all medium to large-sized companies that include guidelines similar to those of US best practice and UK Serious Fraud Office recommendations. In that respect, companies concerned must establish the following eight preventive anti-corruption measures which constitute an anti-corruption plan:. The French Anti-corruption Agency published several guidelines in that respect in December which confirm that the implementation of a compliance programme should tailored to each organisation, starting with risk mapping.

Companies should also keep in mind that due diligence and investigations should be conducted in accordance with data protection laws while processing employer personal data. What legislation governs the requirements for record keeping and accounting in your jurisdiction? The rules for record keeping and accounting are set forth by the Commercial Code Article L and following.

Article L of the Commercial Code provides that companies should keep accounting records of all transactions. Transactions will be recorded chronologically. They must carry out an inventory on an annual basis of all company assets and liabilities. Companies must also draw up annual accounts at the close of the financial year on the basis of the record and the inventory. These annual accounts include:. Companies should retain all accounting records and supporting documentation ie, invoices and contracts for a year period Article L The annual financial statements must be submitted to, and approved by, the shareholders and filed at the Registry of the Commercial Court to be made available to the public.

What are the requirements for companies regarding disclosure of potential violations of anti-corruption regulations? Because of cultural differences with the common law system, the French legal system is not keen on encouraging self-reporting.