Update of the French Anticorruption Agency’s recommendations regarding anticorruption programs

Update of the French Anticorruption Agency’s
recommendations regarding anticorruption programs

Pursuant to the provisions of French Sapin II Law (“Loi Sapin II”)1, the French Anticorruption Agency (“AFA”) issued recommendations aimed at assisting public and private legal entities – whether they are subject or not to the obligation provided for in Article 17 of the Sapin II law to implement preventive and detective measures against corruption2 – in their initiatives to prevent and detect integrity violations within their entities.

As well as the national diagnosis launched by AFA to assess the effectiveness of corruption prevention and detection systems implemented within companies3, the recommendations’ update is part of the first steps of the multi-year national anti-corruption plan 2020-2022 carried out by AFA and approved by the government in early 2020 4.

AFA therefore improves its recommendations as to the 8 pillars of Article 17 of Sapin II law. Hence, the scope of the risk mapping is extended to the risks of influence peddling5. AFA further recommends the extension of the third-party category submitted to due diligence to include third parties with whom the company would like to enter into a relationship for the purpose of an acquisition or for sponsorship6. In addition to training initiatives intended for managers and most exposed employee, AFA urges to raise all employees’ awareness regarding the fight against corruption7. With regard to the internal control and audit system, AFA recommends the establishment of a specific procedure setting out “the processes and situations involving identified risks, the frequency of controls and their procedures, the persons in charge of these controls and the rules for transmitting the results to the management body8.

Furthermore, AFA strengthens the authority of its recommendations. Despite not being legislative in nature, the recommendations are now “opposable” against AFA as part of its inspections9. Accordingly, in the context of an AFA inspection, companies henceforth benefit from a presumption of compliance when they indicate having designed their compliance program in accordance with AFA’s recommendations. It then falls to AFA to demonstrate that this application has been “ineffective, incorrect or incomplete”.10. This amendment is in line with and confirms the decision of the Sanction Commission issued on July 4, 2019, which states that when a company indicates having complied with the methodology recommended by the AFA, “it must be deemed to have provided sufficient information, unless the Agency proves that it failed, in reality, to follow the recommendations11.

Check out the new AFA’s recommendations.

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Julie Zorrilla, Partner Navacelle Paris
Princessa Fouda, Associate Navacelle Paris
Héloïse Vigouroux, trainee lawyer EFB

  1. First paragraph of article 3, 2° of the law n°2016-1691 of Dec 9, 2016, regarding the fight against corruption, transparency and the modernization of the economy, (“[the French Anti-Corruption Agency] elaborates recommendations to help public and private legal persons prevent and detect corruption, influence peddling, embezzlement, illegal interest taking, misappropriation of public funds and favoritism”).
  2. Article 17 of the law n°2016-1691 dated 9 December 2016, regarding the fight against corruption, transparency and the modernization of the economy, (“company with at least five hundred employees, or belonging to a group of companies whose parent company is headquartered in France and whose employees includes at least five hundred employees, and whose revenue or consolidated revenue exceeds 100 million euros [is required] to take measures to prevent and detect the incurring, in France or abroad, of acts of corruption or influence peddling, in accordance with the procedures laid down in II.”).
  3. Multiannual National Anticorruption Plan, French Anticorruption Agency (“Part 1 – Taking action – 2 – Support the deployment of anticorruption programs in local authorities and their establishments by 2022 (…) Tools: a survey by the AFA on the status of anticorruption mechanisms in local authorities, similar to the one conducted in 2018. It might be conducted in 2021 (i.e. after a full year of implementation of the plan) and then in 2022 (when the plan expires)“), National Diagnosis on Anticorruption Programs within Companies, Results of the 2020 investigation, French Anticorruption Agency, Read diagnostic.
  4. Multiannual National Anticorruption Plan, French Anticorruption Agency, (“Part 1 – Taking action – 1 – Support the deployment of anticorruption programs in all government ministries by 2022 (…) Tools: – educational actions carried out by AFA to assist administrations (awareness-raising and training actions, distribution of guides); 2 – Support the deployment of anticorruption programs in local authorities and their establishments by 2022 (…) Tools: – educational actions carried out by the AFA: support for local authorities, awareness-raising and training actions, distribution of guides), National Diagnosis on Anticorruption Programs within Companies, Results of the 2020 investigation, French Anticorruption Agency, Read diagnostic.
  5. Notice published in the Journal officiel de la République française regarding AFA recommendations intended to assist public and private legal entities to prevent and detect corruption, influence peddling, embezzlement, misappropriation, misappropriation of public funds and favoritism, 12 January 2021, II.2.117 (“The combined interpretation of the different provisions of Article 17 and in particular of its I, implies that the companies submitted to this article must establish a risk mapping covering not only the risks of corruption as specified in the text, but also those of influence peddling”).
  6. Notice published in the Journal officiel de la République française regarding AFA recommendations intended to assist public and private legal entities to prevent and detect corruption, influence peddling, embezzlement, misappropriation, misappropriation of public funds and favoritism, 12 January 2021, II.1.A.3.203 (“It is also recommended to include in the evaluation systems other categories of third parties with which the company may be in relation or wish to enter into relation, in particular: its acquisition targets, its sponsorship beneficiaries or sponsorship actions”).
  7. Notice published in the Journal officiel de la République française regarding AFA recommendations intended to assist public and private legal entities to prevent and detect corruption, influence peddling, embezzlement, misappropriation, misappropriation of public funds and favoritism, 12 January 2021, II.3.A.2.181 (“An effective and appropriate training program is a key factor in promoting the values and culture of integrity within the company, and promotes the broad dissemination of the governing body’s anti-corruption commitments, as well as their adoption by the employees affected. It can usefully be included in the broader effort to raise awareness for all employees”).
  8. Notice published in the Journal officiel de la République française regarding AFA recommendations intended to assist public and private legal entities to prevent and detect corruption, influence peddling, embezzlement, misappropriation, misappropriation of public funds and favoritism, 12 January 2021, II.3.B.2.291, (“The controls thus defined are described in a procedure that specifies the processes and risk situations identified, the frequency of controls and their procedures, the persons responsible for these controls and the conditions for reporting their results to the management body”).
  9. Notice published in the Journal officiel de la République française regarding AFA recommendations intended to assist public and private legal entities to prevent and detect corruption, influence peddling, embezzlement, misappropriation, misappropriation of public funds and favoritism, 12 January 2021, I.I.3 8. and following, (“8. These recommendations do not create legal obligations to the persons to whom they are addressed. The organizations mentioned in paragraph 7 are free to adopt other methods, provided that their implementation allows compliance with the law. 9. AFA refers to the recommendations as part of its advisory and monitoring missions. It will only refer to the present document for inspections after sixth month into force. 10. These recommendations are binding AFA in the context of its inspection’s activities, i.e.  that entities mentioned in paragraph 7 may rely on them if they have decided to comply with them”).
  10. Notice published in the Journal officiel de la République française regarding AFA recommendations intended to assist public and private legal entities to prevent and detect corruption, influence peddling, embezzlement, misappropriation, misappropriation of public funds and favoritism, 12 January 2021, I-I.3 11, (“11. Thus, an entity as referred to in paparagraph 7, that indicates during an AFA inspection having complied with these recommendations, benefits from a simple presumption. Such presumption can only be reversed if the AFA demonstrates an ineffective, incorrect or incomplete application of the recommendations”).
  11. French Anticorruption Agency, Sanctions Commission, July 4, 2019, decision no. 19-01, Société S SAS et Mme C.