France Prepares Proposals to Amend Anti-Corruption Legislation

The bill is drafted by Raphaël Gauvain, a deputy of the French National Assembly, as a follow-up to the recommendations of the Commission on Constitutional Acts, Legislation and General Administration released last June and envisages amendments to Law of 9 December 2016 No. 2016-1691 “On Transparency, the Fight against Corruption and the Modernisation of Economic Life” (hereinafter referred to as Sapin II), Law of 11 October 2013 No. 2013-907 “On Transparency in Public Life” (hereinafter, the Law on transparency in public life), the General Local Authorities Code, the Criminal Code and the Criminal Procedure Code. The proposed amendments cover the following areas:

1. Functioning of anti-corruption bodies

The bill clarifies the functions of the French Anti-Corruption Agency (Agence Française Anticorruption – AFA) and of the High Authority for Transparency in Public Life (Haute Autorité pour la Transparence de la Vie Publique – HATVP).

In particular, it is proposed to assign the functions to coordinate national anti-corruption policy and strategic planning to the AFA, including:

provision of assistance to the government in the development and implementation of a set of measures aimed at preventing and detecting corruption, in particular, in developing a multi-annual national plan for countering corruption, trading in influence, misappropriation of public resources and favouritism, as well as in supporting competent national authorities participating in the activities of international organisations concerning the fight against corruption;
publication and circulation of information and guidance materials on the fight against corruption;
supervision of the enforcement of restrictions, prohibitions and obligations related to lobbying;
supervision of the enforcement of Law of 26 July 1965 No. 68-678 “On the Transmission of Economic, Commercial, Industrial, Financial or Technical Documentation and Information to Foreign Natural and Legal Persons” (Loi № 68-678 du 26 juillet 1968 relative à la communication de documents et renseignements d'ordre économique, commercial, industriel, financier ou technique à des personnes physiques ou morales étrangères), in particular, in investigating transnational corruption crimes.

Additionally, the bill proposes to reduce the term of office of the director of the AFA from six to four years.

As regards the HATVP, the bill assigns the following functions to it:

conduct of verifications concerning the compliance with the requirements for economic entities envisaged in Sapin II;
development of methodological guidance on the issues related to the compliance with the requirements of Sapin II;
transmission of information on the elements of crimes and offences detected in the course of fulfillment of its functions by the HATVP to the prosecuting authorities;
release of an annual report including general information on the requests of opinion received by the HATVP and regarding 1) compatibility of the establishment or acquisition of a company by a civil servant with the fulfillment of his/her duties associated with the office he/she holds; 2) potential temporary suspension or permanent termination of the civil service by a person wishing to engage in a private profit-making activity; 3) reinstatement of a person in his/her civil service office or contractual employment;
imposition of sanctions in the event that the violations of Sapin II requirements were not removed within two months since an official notification had been received (to implement these functions, it is planned to establish a Sanctions Commission (Commission des Sanctions) under the HATVP as is the case with the AFA).

2. Fight against corruption in the public and private sectors

The bill proposes to clarify the obligation introduced by Sapin II to adopt anti-corruption measures by public bodies, local self-government bodies, public institutions and organisations that fulfill public functions.

In particular, the document introduces a list of persons responsible for adopting and implementing corruption prevention measures in such bodies (organisations): for instance, the relevant functions in the public entities will be assigned to the chairs of the boards of directors or supervisory boards, top managers or directors.

Besides that, the bill provides for an exhaustive list of relevant measures, including:

publication of a regularly updated code of conduct;
establishment of an internal system for reporting corruption acts and other offences, misconduct etc.;
development of a regularly updated risk map taking into account the specifics of the activities and other characteristics of the body (organisation);
conduct of due diligence procedures with respect to the third parties which the public entity interacts with (suppliers, contractors, subcontractors etc.);
implementation of the mechanisms for detecting risks of corruption and other offences in the bookkeeping, internal control and auditing system;
development of a plan for raising awareness of officials of the body (organisation) about corruption prevention and organisation of anti-corruption training for the managers and staff subject to high corruption risks;
introduction of disciplinary liability for the violation of the code of conduct or misconduct;
establishment of an internal system for the assessment and monitoring of the implementation of the adopted anti-corruption measures.

Finally, the bill proposes to oblige the heads of regions, departments (an administrative division of France – editor’s note) and municipalities, and the heads of the entities for inter-municipal cooperation to annually submit a report on the adopted anti-corruption measures to the council of the relevant territorial unit.

As regards the fight against corruption in the private sector, an important novelty introduced by the bill is the proposal to expand the requirements of Sapin II concerning the adoption of anti-corruption measures to all affiliate organisations of foreign companies if these companies themselves are consistent with the “threshold values” (have staffing numbers over 500 persons and an annual turnover exceeding €100 million).

The bill also provides for the introduction of a new corpus delicti, i.e. failure of a legal person to adopt appropriate control measures, which resulted in the commission of one or several crimes by an employee of the organisation*.

3. Pre-trial resolution

The bill provides for a number of measures to improve the pre-trial resolution mechanisms, in particular:

expands the list of crimes whose commission can result in the conclusion of a pre-trial agreement by including favouritism in it;
increases the term for introducing compliance programme, as envisaged in the pre-trial agreement, to five years;
authorises the prosecutor to extend the indicated term for implementing compliance programmes and changing the relevant expenditure limits of the economic entity;
enshrines the right of the organisation to access the case file at the preliminary investigation stage;
changes the procedure for conducting internal investigations, in particular, establishes the right of the persons who are suspected of having committed offences to consult the case file and be informed about the conclusion of the investigation;
authorises the prosecutor, with the consent of the economic entity, to appoint a special agent or special committee, depending on the size of the organisation, that would represent the entity in the negotiations on the conclusion of the pre-trial agreement;
introduces the prohibition to use the evidence obtained in the course of the negotiations on the conclusion of the pre-trial agreement in court in the event that the agreement is not concluded.

4. Register of lobbyists

The bill expands the list of obligations of the representatives of interests (lobbyists) and proposes measures for enhancing the transparency of the activities of top public officials (members of government/cabinet of ministers, adviser to the president etc. – the whole list of relevant persons is provided in paragraphs one to seven of article 18-2 of the Law on transparency in public life), in particular:

changes the definition of the notion “a representative of interests”: previously, a representative of interests was a legal person, whose senior official, employee or servant influenced public decisions in the course of his/her main or regular activity; according to the bill that has been drawn up, it is proposed to categorise as representatives of interests the legal persons whose main, regular or support activities are related to influencing public decisions;
changes the frequency of filing the declarations of lobbyists that should be submitted at least twice a year;
provides for the inclusion of information about the interactions with top public officials in the declarations of lobbyists; they should unveil, in particular, the functions of the officials, content of decisions, information about the follow-up action that was taken also at the initiative of the indicated persons;
introduces the obligation of top public officials, except for deputies, senators and advisers to the presidents of the National Assembly and the Senate, deputies, senators and members of parliamentary factions and officials of parliamentary assemblies, to provide information about the lobbyists with whom they have interacted at the request of the HATVP.

*It should be highlighted that the introduction of liability for the failure of an organisation to adopt measures for preventing corruption of its employees (other associated persons) is becoming increasingly widespread in foreign countries: the norms of this kind exist, in particular, in the United Kingdom, South Korea (in Russian) and Kenya, while the possibility to establish the relevant corpus delicti is under discussion in Australia. This approach provides law enforcement authorities with multiple advantages, in particular, it allows them to hold organisations liable for bribery, including bribery of foreign public officials, without the need to gather evidence of the involvement of certain natural persons (the so-called “mastermind”) in the commission of a crime, which takes a long time and is not always successful.