16/12/2021 - According to a new report by the OECD Working Group on Bribery, France has undertaken major legislative and institutional reforms since Phase 3 in 2012 and made significant progress in enforcing the foreign bribery offence. However, these recent advances are being jeopardised by structural resource issues affecting the entire criminal justice system. Furthermore, two recent bills, one of which will impose a three-year limit on preliminary investigations into economic and financial crimes, including foreign bribery, raising concerns about France's ability to make further progress.
The 44-country OECD Working Group on Bribery has just completed its Phase 4 evaluation of France's implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments. The report welcomes the significant increase in the number of investigations opened, as well as foreign bribery cases concluded (14 cases since 2012). These enforcement efforts have resulted in sanctions for 19 natural persons and 23 legal persons. Of these 14 cases, 5 were resolved using a new non-trial resolution mechanism, the convention judiciaire d'intérêt public (CJIP), including 2 high-profile multi-jurisdictional cases. Nevertheless, the number of cases detected and resolved remains relatively low in light of France's economic situation and trade profile and the number of foreign bribery allegations reported in the media.
The Working Group made a range of recommendations to France, in particular to:
- Take the necessary legislative measures to extend the duration of preliminary investigations in foreign bribery cases to allow for the prompt and effective enforcement of the foreign bribery offence.
- Preserve the role and expertise of the National Financial Prosecutor's Office (PNF) in the investigation, prosecution and resolution of foreign bribery cases.
- Ensure that sufficient resources for fighting white-collar crime are allocated to the relevant components of the criminal justice system.
- Clarify the conditions for triggering corporate liability and continue efforts to develop effective and coordinated non-trial resolutions for natural and legal persons.
- Preserve the role, mandates, and resources currently assigned to the French Anti-Corruption Agency (AFA) in developing and monitoring compliance measures by businesses.
The report also notes a large number of positive developments. After establishing specialised prosecution (PNF) and investigative offices (OCLCIFF), France substantially overhauled its anti-bribery legislative framework by passing the 2016 Sapin 2 Act. The legislative reforms undertaken since Phase 3 have allowed France to revise its approach and become a credible counterpart in combatting foreign bribery, including by ending the public prosecutor's exclusive authority to bring foreign bribery cases, but also by clarifying the scope of the foreign bribery offence, significantly increasing the statutory fines for individuals and legal persons, and by introducing the CJIP, which has produced a paradigm shift in the enforcement of corporate liability. The AFA's creation and the new corporate compliance obligation under the Sapin 2 Act have placed prevention and internal compliance measures at the heart of France's policy for combating foreign bribery. Finally, France significantly reinforced its legal framework to protect whistleblowers and has begun transposing the EU Whistleblowing Directive.
On 9 December 2021, the OECD Working Group on Bribery adopted the France Phase 4 report. The report, on pages 153-159, contains recommendations made to France by the Working Group. It also provides an overview of recently implemented measures and the specific legal, policy, and institutional features of France's framework for fighting foreign bribery. Within one year (December 2022), France will submit an oral report to the Working Group on its implementation of some recommendations that are essential to preserving the progress made since Phase 3. Within two years (December 2023), France will also submit a written report to the Working Group on the implementation of all recommendations and its enforcement efforts. The follow-up reports will be made publicly available.
The report is part of the OECD Working Group on Bribery's fourth phase of monitoring, launched in 2016. Phase 4 looks at the evaluated country's particular challenges and positive achievements. It also explores issues such as detection, enforcement, corporate liability, and international cooperation, as well as covering unresolved issues from prior reports.
