According to the explanatory note to the text of the bill, the “ill-gotten gains” (biens mal acquis) should be understood as the assets (movable and immovable property, financial products etc.) acquired in the territory of France to launder the proceeds of unlawful activities or conceal financial crimes, including corruption, committed in foreign jurisdictions by politically exposed persons and/or their relatives and damaging public institutions and the population of such jurisdictions.
Under provisions of the current legislation if the country of origin of the gains which allowed the acquisition of such assets does not file a civil suit for compensation or a mutual legal assistance request to confiscate the proceeds from their sale such assets/proceeds from their sale are transferred to the French general state budget.
The proposed bill provides for the return of the proceeds from the sale of the biens mal acquis to their countries of origin “as close as possible to the population of the foreign State concerned to finance cooperation and development actions”.
To this end, a specific budget programme within the French Treasury will be created. It will host such proceeds before their allocation to relevant development programmes through non-governmental organisations or the French Development Agency (Agence Française de Développement – AFD). It is expected that this budget programme should be able to distinguish the proceeds of unlawful activities from development assistance funds and ensure traceability of funds during the initial stages of the restitution process. The budget programme will be monitored by Parliament with the participation of French and international non-governmental organisations; it was initially proposed that the AFD have exclusive control over the funds, but taking into account the high risks of granting such discretionary powers to the Agency, the respective provisions were modified.
On 2 March 2021, the bill was unanimously adopted by the French National Assembly and is now awaiting the approval by the Senate.
It took 13 years for the French legislator to develop the legal framework for the restitution of the biens mal acquis: the first complaints regarding such cases were brought by the French chapter of Transparency International and the NGO Sherpa back in 2008. In particular, back then the NGOs brought charges against Teodorin Nguema Obiang Mangue, a son of the president of Equatorial Guinea, who had held different posts in the cabinet of his father.
In 2017, the French court found Teodorin Nguema guilty of money laundering and embezzlement and decided to impose a prison sentence and a fine on him along with confiscation of assets valued at almost €150,000,000. In February 2020, the Court of Appeal confirmed the sentence on account of the confiscation, and in December 2020 the International Court of Justice pronounced the final decision, having declined the arguments of Equatorial Guinea that the most important asset seized under the proceedings, i.e. a 101-room luxury mansion on the Avenue Foch in Paris worth €110,000,000, was protected by diplomatic immunity.
Teodorin Nguema has lodged an appeal with the French Court of Cassation, which will examine it in the coming months. If the bill is not adopted by that time, then the assets obtained through the sale of the confiscated property will revert to the French general state budget.