Criminal Policy Circular on the Fight against International Corruption

MINISTRY OF JUSTICE

Paris, June 2, 2020
Date of application: immediate

The Keeper of the Seals, Minister of Justice

To
For action

Ladies and gentlemen, Attorneys General of the Courts of Appeal
Public Prosecutor at the Higher Court of Appeal
Ladies and Gentlemen Prosecutors of the Republic

Anti-Terrorist Public Prosecutor
before the Paris Court of Justice

For information

Ladies and Gentlemen Presidents of the Courts

Director of the French Anti-Corruption Agency
N° NOR : JUSD2007407
N° CIRC: CRIM202009G3/11.03.2020
N/REF : 2020 F 0028 FAl

Title : Criminal Policy Circular on the Fight against International Corruption

Mots clefs : foreign public officials, article 40 of the code of criminal procedure, breaches of probity, concurrent jurisdiction of the National Financial Prosecutor’s Office, Judicial Public Interest Agreement, corruption, international corruption, detection, clandestine offences, whistle-blowers, legal persons, statute of limitations, sanctions, awareness-raising, influence peddling, international influence peddling

Publication : Bulletin officiel and intranet justice

The fight against corruption is one of the most important contemporary challenges facing our democratic societies..

According to the IMF, the total amount of inducements paid each year worldwide can be estimated between 1,500 and 2,000 billion dollars, i.e. almost 2% of the world’s GDP1

According to the European Parliament, corruption alone costs the European economy at least 179 billion euros each year2. According to the European Parliament, corruption alone costs the European economy at least 179 billion euros each year

In addition to these economic costs, there are costs that cannot be quantified in terms of political, social and security impact. This massive, occult and particularly complex form of economic crime represents a threat to the economic and social well-being of our fellow citizens, to confidence in the rule of law and to the security and democratic stability of our societies. On the economic and social level, corruption affects commercial relations by distorting the market and creating illegal distortions of competition. At the political level, the corruptive phenomenon leads to the loss of confidence of citizens and economic operators in the legitimacy of public authorities. Finally, at the criminological level, corruption is the essential tool of organised crime in that it facilitates the development of all sorts of trafficking.

The fight against large-scale corruption has, however, not always been a priority for the international community. This phenomenon has long been presented as an inevitable consequence of poverty affecting only developing countries. To such an extent that some developed countries have been able to adopt a certain tolerance towards companies established on their territory when they had to pay inducements outside the country.

From the end of the 1990s onwards, however, the ever-increasing interdependence of national economies was accompanied by a growing demand from civil society for greater transparency in public and business life.

Several international organizations, such as the World Bank and the International Monetary Fund, have gradually established mechanisms to prevent and detect corruption in development and poverty reduction programmes financed by them.

At the same time, a number of countries, including France, have been at the origin of several multilateral initiatives aimed at establishing a shared general normative framework in the fight against corruption, which have led to the adoption of:

  • the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions signed in Paris on 17 December 1997;
  • the Council of Europe Criminal Law Convention on Corruption signed in Strasbourg on 27 January 1999;
  • the United Nations Convention against Corruption signed in Merida on 9 December 2003.

Following the ratification of these international instruments by Parliament, several laws have been adopted to adapt our legal instruments.

Hence, a new judicial authority specializing in the prosecution of the most sophisticated financial crime, the National Financial Prosecutor’s Office (PNF)3, and a specialized investigation service, the National Office for Combating Corruption and Financial and Tax Offences (OCLCIFF)4 have been created.

The investigative powers that can be mobilised in this area have been extended by the legislator, who has allowed the possibility of using certain special investigative techniques initially reserved for the fight against organised crime5.

Furthermore, to strengthen the deterrent effect of criminal law, the fines incurred for this type of offence have been considerably increased, both for natural and legal persons6.

This repressive facet was then supplemented by the creation of a preventive aspect which resulted in the creation of the French Anti-Corruption Agency (AFA) and the possibility for the judicial authority to impose penalties to reinforce compliance measures.

At the same time, the judicial authority has been provided with a new legal instrument enabling it to punish acts of large-scale corruption committed by legal persons in an appropriate and diligent manner, the Judicial Public Interest Agreement (CJIP)7.

Finally, in order to complete the consolidation of this new anti-corruption structure, the legislator decided to extend the statute of limitations period, particularly in the case of corruption, from 3 to 6 years and to consolidate at the legislative level the case law on the extension of the starting point of this period for occult or concealed offences8.

Thanks to these successive reforms, the judicial authority now has the tools and mechanisms to effectively prosecute this particularly complex and insidious form of financial crime, and thus to ensure that its judicial sovereignty is respected vis-à-vis foreign prosecuting authorities that wish to prosecute French companies.

This Circular sets out the guidelines of the criminal policy in the fight against international corruption.

Table of contents

1. The central role of the National Financial Prosecutor’s Office in the fight against international corruption

1.1 The visibility and recognition of the PNF on the international scene

1.2 The technical and legal expertise, and specific resources of the PNF

2. The use of all existing reporting channels for international corruption

2.1 The different channels for gathering information that can be mobilised

2.2 The role of the PNF in research, analysis and use of information

3. The recourse to an investigation strategy designed to reveal, in a timely and detailed manner, the corruption schemes and to identify all related parties

3.1 The definition and monitoring of objectives

3.2 The applicable criminal qualifications

3.3 The choice of investigative body

3.4 The possible investigative actions and techniques

3.5 The use of seizure and guarantee measures

3.6 The implementation of international mutual assistance

4. The determination of an appropriate mode of prosecution for the purpose of effective, proportionate, and dissuasive sanctions

4.1 With regard to natural persons

4.2 With regard to legal persons

1. The central role of the National Public Prosecutor’s Office in the fight against international corruption

The PNF plays a central role in the fight against international corruption, both because of its visibility and recognition on the international scene and because of its technical and legal expertise and the specific means at its disposal.

1.1. The visibility and recognition of the PNF on the international scene

On the international scene, the PNF is a privileged interlocutor for international organisations (OECD, World Bank, etc.) as well as for foreign judicial authorities specialised in the fight against serious economic and financial crime (Departement of Justice in the United States, Serious Fraud Office in the United Kingdom, Økokrim en Norvège, Ministério Público da União in Brazil, Fiscalia anticorrupción en Espagne, Direcția Națională Anticorupție in Roumania, etc.). The privileged links that the PNF has developed in recent years with the main international partners in the fight against international corruption, and in particular its in-depth knowledge of the judicial practices of the most active foreign authorities in this area, now make it a respected and indispensable interlocutor. This recognition enables its opinion to be valued in the discussions it holds with its main counterparts when it comes to the best possible coordination of the organisation of investigations and prosecutions in accordance with Article 4 (3) of the OECD Anti-Bribery Convention[/note] «Where more than one Party has jurisdiction over an alleged offence referred to in this Convention, the Parties concerned shall, at the request of any one of them, consult with a view to deciding which Party is best placed to prosecute»..[/note]

1.2. The technical and legal expertise, and specific resources of the PNF

At the national level, its proven expertise in the economic and legal mechanisms likely to be implemented, its experience acquired in the processing of sensitive economic data, as well as in the management of negotiations with the companies in question, particularly in the context of the implementation of CJIP, make it a particularly well placed player to deal effectively with this type of cases. Moreover, the PNF is able to mobilize very quickly the technical and human resources necessary to effectively conduct investigations in this area. It is also in close contact with the State services responsible for ensuring compliance with the provisions of Law No. 68-678 of July 26, 1968, known as the “loi de blocage”. This law, which aims to preserve existing judicial cooperation mechanisms, allows the PNF to be informed of foreign criminal proceedings initiated or planned against French companies and to open a mirror investigation if necessary. For all of these reasons, the PNF is naturally called upon to exercise its jurisdiction over all international corruption cases and to centralise their handling. Consequently, when credible suspicions of international corruption are brought to the attention of a public prosecutor’s office, or appear in the course of proceedings, and in continuity with previous instructions to this effect, the PNF should be systematically informed of these cases, without distinction of the stage of the proceedings, the level of responsibility of the persons involved or the financial dimension of the case9.

2. The use of all existing reporting channels for international corruption

The judicial authority can use various methods of reporting to assess the appropriateness of opening investigations.

2.1. The different channels for gathering information that can be mobilised

The nature of the State administrations’ missions and the information they need to process to accomplish them put these entities in a strategic position to detect international corruption involving economic operators. This is particularly the case for the staff of the tax administration, diplomatic and consular posts as well as State and regional economic services which are, like all other public officials, obliged to reveal to the judicial authority the criminal acts of which they become aware in application of the second paragraph of Article 40 of the Code of Criminal Procedure.

In this respect, in recent years, several government departments have introduced codes, charters or guides to raise awareness of ethical issues among all their officials, including the Directorate General of the Treasury and the General Directorate of Public Finances, in order to make them aware of the problem of corruption. It should be noted in this respect that the tax administration – more particularly the Directorate of National and International Tax Audit (DVNI) which is in charge of the external audit missions of large companies – can be a particularly valuable source of information on international corruption.

Within the framework of partnership established with the tax authorities, it would therefore seem appropriate for the PNF to undertake specific work to raise the auditors’ awareness of the possibilities of detecting such facts, when examining the supporting documents, for charges in connection with international contracts.

As part of its missions to monitor the robustness of anti-corruption programmes within large companies, the AFA may also be led to discover suspicious facts that may justify a report to the judicial authority pursuant to Article 3, 6° of the Law of December 9, 2016. The AFA and the PNF thus signed, in March 2018, a protocol to specify the terms of exchange between the two institutions.

Likewise, with regard to the information they acquire in the course of carrying out their missions, several independent administrative authorities may be led to report to the judicial authority suspicions of offences of this nature. This is the case, in particular, of the Competition Authority, French Prudential Supervision and Resolution Authority, Financial Markets Regulator or the High Authority for Transparency in Public Life.

In view of the nature of their tasks, certain public or semi-public operators acting as public investors, in the context of export credits or bilateral development aid may come into possession of relevant information. This is notably the case for Business France, the French Development Agency, Bpifrance, the Government Shareholding Agency and the Deposits and Consignments Fund. Most of these operators have enacted codes or ethical charters designed to detect and prevent corruption in the operations in which they are involved. Here again, it is the responsibility of the PNF to conduct awareness-raising activities aimed at these operators.

multilateral development banks, first and foremost the World Bank, are also a valuable source of reports in this area. These institutions have developed their relations with the judicial authorities of States to promote cooperation in the detection and prevention of corruption through the signing of Memorandum of Understanding.

Financial audits of State administrations or regional authorities carried out by the Court of Audit and the regional and territorial chambers of accounts may reveal situations that are contentious with regard to the rules of public probity. Articles R.141-3 and R.241-3 of the Courts of Audit Code (code des juridictions financières) provide for the judicial authority to be informed, which can be done under the conditions specified by the Circular of 10 December 2014 on relations between the judicial authority and the Courts of Audit.

Within the Ministry of Finance, the Tracfin financial intelligence unitis a major source of information for reporting situations involving a «corruption risk» from a money laundering perspective. This unit is responsible for receiving, analysing, enriching and then forwarding to the judicial authority suspicious information from regulated professionals listed in Article L.561-2 of the Monetary and Financial Code (including banking institutions, financial investment advisers, chartered accountants, notaries, etc.). To facilitate the detection of this type of cases, in 2008 Tracfin distributed a guide to help detect corruption, updated in 2014, which gives examples of vigilance indicators and corrupt arrangements, particularly international.

In the same vein, the PNF could usefully develop relations with the Strategic Information and Economic Security Service (SISSE) and with the intelligence services responsible, under the «National Intelligence Strategy», for the defence and promotion of our economy.

statutory auditors to disclose any criminal acts of which they become aware in the course of their duties. The scope of this obligation – the breach of which is punishable under Article L.820-7 of the same code – was specified in the Circular of 18 April 2014 relating to the obligation of disclosure of criminal acts by statutory auditors. The presence of statutory auditors in the large companies and the scope of their assignments make them a valuable tool for the detection of corrupt schemes. The PNF will be able to initiate, for the attention of the French High Council for Statutory Auditors, a specific awareness-raising and training programme on the problem of detecting occult payments.

In the same way, the PNF will be able to sensitize representatives of the profession of judicial administrators as to the scope of the obligation of disclosure to which they are subject by virtue of article L.814-15 of the Commercial Code.

Alerts from persons likely to fall under the status of whistleblowers, as provided for by the Law of December 9, 2016, will require special attention and follow-up. This law has made it possible to strengthen the protection of whistleblowers in order to allow any employee or civil servant who becomes aware of acts of corruption to be able to report them without fear of reprisals within his company or administration. Where appropriate, the disclosure of confidential information likely to identify the whistle-blower and the obstruction of the transmission of an alert must be prosecuted by the competent judicial authority on the basis of Articles 9 and 1312, Anticor13 and Transparency International14.

The voluntary disclosure by companies of acts of corruption committed in the course of their international business activities by some of their members is a valuable source of detection. Since 2016, large French companies have been required to implement internal alert systems designed to collect reports from employees regarding the existence of behaviour that could be indicative of corruption or influence peddling. Although the managers of these companies are not, in this respect, subject to the obligation to report such facts to the judicial authority, it may nevertheless be in their interest to do so in order to seek in return some form of leniency with regard to the methods of prosecution likely to be envisaged by the PNF. The possibility of seeking the conclusion of a CJIP is in fact in the interest of the companies at the origin of a voluntary disclosure, as it will allow them to be protected from the risk of exclusion from public procurement procedures to which they are exposed in the event of a conviction by a court15. From this point of view, the PNF could usefully develop exchanges with organizations representing French companies internationally (MEDEF, AFEP) in order to define and implement a framework and practical incentives for spontaneous disclosure.

2.2 The role of the PNF in research, analysis and use of information

In addition to the complaints and reports mentioned above, the PNF should regularly use all the sources of information at its disposal concerning companies operating internationally. Thus, incoming requests for mutual assistance in criminal matters involving French companies or companies carrying out an economic activity on the national territory will be systematically used with a view of the possible opening by the PNF of a mirror investigation for facts of corruption.

Particular attention should be paid to national and foreign press articles that are likely, when credible and detailed facts are reported in them, to justify in-depth verifications with a view to the possible opening of a criminal investigation .16

Finally, the PNF, as a member of the French delegation to the OECD Working Group on Bribery in International Business Transactions, will have to exploit the information exchanged between representatives of the 44 participating countries.

It is important that in exploiting these different sources of information, the PNF’s attention primarily focuses on the economic sectors identified by the OECD and the European Union as most particularly exposed to the risk of corruption, namely construction, extractive industries, transport, telecommunications, pharmaceuticals, energy and military equipment.

Beyond the objectification of credible factual elements, the PNF should systematically verify whether an economic operator implicated in an international corrupt scheme is likely to fall within its jurisdiction under Articles 435-6-2 and 435-11-2 of the Penal Code, according to which French criminal law is applicable to acts of corruption or influence peddling committed abroad by persons «habitually residing or exercising all or part of [their] economic activity on French territory«. Since the legislator intended to adopt a broad definition of the exercise of an economic activity, it should be considered that persons «exercising all or part of [their] economic activity in France» within the meaning of these texts include foreign legal persons having a subsidiary, branches, commercial offices or other establishments in France, even if they do not have their own legal personality.

3.The recourse to an investigation strategy designed to reveal, in a timely and detailed manner, the corruption schemes and to identify all related parties

The emergence in recent years of new and increasingly sophisticated structures encouraging corruption (trusts, nominees, shell companies, foundations, etc.), the proliferation of tax havens, the multiplication of financial flows, the geographical dissociation of companies and their bank accounts, the use of «comptes rebonds» and the availability of increasingly powerful communication tools are the main challenges for investigators. Conducting investigations in this area therefore requires the PNF to devise and monitor a strategy based on a rigorous methodology designed to rapidly gather all the evidence needed to characterise corruption.

3.1. The definition and monitoring of objectives

The objectives to be achieved should aim at identifying the financial circuit of remuneration and all the natural persons involved in the corrupt scheme and their respective degree of involvement.

Even if in this type of case, it may seem simpler to focus the investigations on the side of the economic operator established in France rather than on the passive side of the corruption insofar as the public decision-maker is a foreigner, one should not, however, neglect patrimonial investigations that make it possible to determine whether the latter holds in France, directly or indirectly, property or assets, the origin of which may be linked to the corruption scheme in question, and whose seizure could then be envisaged.

3 .2. The applicable criminal qualifications

The main applicable offence is that of bribery of foreign public officials, both active and passive, as provided for and punished by Articles 435-1 and 435-3 of the Criminal Code. It should be stressed that, in order to be constituted, this offence does not require proof of the existence of a «bribery pact». It is sufficient to prove that the active briber offered a sum of money or that the passive briber solicited the payment of a sum of money in exchange for the performance of an act. It does not matter whether or not this proposal or solicitation was accepted17. Thus, the attempt to bribe is not specifically criminalised, since the facts that could correspond to this meaning already constitute the bribery offence itself.

Certain facts may also be qualified as influence peddling of a foreign public official, according to the distinctions provided for in Articles 435-2 and 435-4 of the same Code. Broadly speaking, the main difference between the qualification of bribery and influence peddling lies in the fact that influence peddling, unlike bribery that targets a corrupted-corrupter relationship, applies to a triangular relationship in which a person with real or supposed influence over certain persons exchanges this influence for an advantage provided by a third party who wishes to benefit from this influence.

Given the secretive nature and ingenuity of the perpetrators of this type of offence (false invoices, multiple intermediaries, etc.), it may however be difficult to establish the constituent elements of these two offences. It will therefore be advisable not to hesitate to investigate certain peripheral offences for which proof may be easier to establish. In this respect, money laundering may constitute a useful additional offence to investigate, since corruption money generally transits through money laundering channels, especially since the proof of this offence is facilitated by the existence in Article 324-1-1 of the Criminal Code of a presumption of illegality when it appears that the material, legal or financial conditions of an investment, concealment or conversion operation can have no other justification than to conceal the origin or the beneficial owner of such assets or income.

The offence of concealment may also be retained against those who hold property or benefit from it knowing that it comes from the commission of acts of corruption or influence peddling by foreign public officials. It should be recalled in this respect that concealment of stolen assets is broadly considered by the courts, which accept that the detention may not be personal (the concealed bribe may thus be in the possession of an agent, for example in a bank account).

Similarly, the use of the qualification of misappropriation of company assets may prove relevant against directors of SAs and SARLs18. The very broad nature given by the courts to the notion of conflict with the corporate interest makes it easy to demonstrate misappropriation of corporate assets. The French Supreme Court has consistently held that «the use of a company’s assets is necessarily abusive when it is done for an unlawful purpose «19. This case law also states that if it is not justified that the assets have been used in the sole interest of the company, corporate funds taken in a concealed manner have necessarily been used in the personal interest of the director20. In terms of repression, it should also be recalled that the penalties incurred are aggravated when a misappropriation of company assets has been carried out or facilitated by means of accounts opened or contracts signed abroad or through the interposition of natural or legal persons established abroad. In companies where this offence is not applicable (general partnerships, limited partnerships, etc.), the offence of criminal breach of trust may be used.

The offence of publication or presentation of annual accounts that do not give a true and fair view[noteArticles L.241-3 3°, L.242-6 2°, L.242-30 du code de commerce.[/note]may be used against the managers of SARLs and SAs. Indeed, this offence has been committed by directors who wanted to conceal hidden remuneration21. In companies for which this offence is not applicable (general partnerships, limited partnerships, etc.), the liability of managers for false accounts may be sought in the field of fraud or forgery.

Finally, since 2000 Article 39-2 bis of the General Tax Code has excluded bribes paid to a public official or third party by a company in the context of an international commercial transaction 22 from the deduction of profits subject to tax. The fact that a company deducts an occult payment is likely to characterise the offence of tax fraud provided for and punished by Article 1741 of the same code.

3.3 The choice of investigation body

OCLCIFF‘s experience with international bribery makes it particularly well suited to conduct the most complex investigations decided upon by the PNF. This office has teams of investigators trained in financial crime, corporate law, public procurement and corporate accounting.

However, the growing volume of this types of cases, as well as the singularity of the geopolitical context or sector of economic activity in certain cases, may require referral to other departments, such as the research section of the Paris Gendarmerie, which has national jurisdiction, or even more exceptionally, for cases with a more limited geography and facts of lesser importance, the regional services of the judicial police, the specialized brigades of the Paris directorate of judicial police (DRPJ), in particular the brigade for the suppression of economic crime (BRDE).

3.4 The possible investigative actions and techniques

In addition to the standard acts of investigation (findings, research on open and closed databases, documentary exploitation, witness hearings, police custody, searches, accounting and tax investigations, etc.), it should be recalled that under the terms of Article 706-1-1 of the Code of Criminal Procedure, the special investigation techniques provided for in Articles 706-80 to 706-87 and 706-95 to 706-102-5 (e.g. installation of listening devices and infiltration) may be used during the preliminary investigation of bribery and influence peddling of foreign public officials.

If the detention in police custody or the issue of a warrant for a foreign public official is envisaged, it will be necessary to check with the Ministry of Europe and Foreign Affairs23 whether the defendant has immunity from jurisdiction under conventional or customary public international law24 and, if so, whether it is enforceable.

 

3.5 3.5 The use of seizure and guarantee measures

As international corruption is an economic offence whose primary motive is profit, and whose appropriateness is assessed by its perpetrators on the basis of a «cost-benefit» balance sheet, it is important that asset-based investigations be systematically carried out in order to identify the proceeds of the offence and, more broadly, the assets of the suspects, whether they are located in France or abroad. With a view to their subsequent confiscation, occult payments received by the corrupted party and back payments received by the corrupter, should then be seized as such or by equivalent, if necessary. Economic and commercial advantages improperly obtained by the briber in execution of the act of corruption may also be seized by equivalent measures. Finally, a guarantee may be usefully required in the event of the opening of a judicial inquiry to guarantee payment of the fine.

3.6 The implementation of international mutual assistance

In the context of bribe payments involving the use of intermediaries hidden by the interposition of front companies located in tax havens, service companies or subcontractors located in the country of the corrupt public officials, the implementation of international mutual legal assistance appears particularly crucial. In addition to the difficulty linked to the opacity of these arrangements, international corrupt schemes take advantage of the existing differences between countries’ legal systems, the lack of consistency in public action and the fact that this type of crime is still generally dealt with by national judicial authorities in isolation from one other. Therefore, effectiveness in the fight against international corruption necessitates an inclusive approach that requires the PNF to establish ever closer links with the various foreign government agencies involved in the fight against international corruption.

4. The determination of an appropriate mode of prosecution for effective, proportionate and deterrent sanctions

4.1 With regard to natural persons

According to a study based on 427 international bribery cases involving legal and natural persons from countries that are signatories to the OECD Anti-Bribery Convention25, in almost one out of every two international bribery cases, kickbacks are paid or authorised by senior company management. Furthermore, according to the same study, intermediaries are involved in three out of four international bribery cases (usually local commercial agents, distributors or brokers).

It is therefore important that the action is taken not only against the employees directly involved in the corrupt scheme, but also against the managers and all natural persons outside the company who intervened, in one capacity or another, in the process of committing the offence. In this respect, it should be recalled that case law considers as accomplices to active bribery intermediaries26 or legal counsel who knowingly provided information enabling a financial arrangement to be made through a foreign company in order to conceal the offence27.

Again, if proceedings are envisaged against a foreign public official, it will be necessary to check with the Ministry of Europe and Foreign Affairs whether the defendant has immunity from conventional or customary jurisdiction.

The choice of the most appropriate criminal response, such as whether to resort to the procedure of appearance on prior recognition of guilt (CRPC) or referral to the criminal court, should take account of the background of the defendant, as well as his degree of involvement, acknowledgement of the facts and cooperation with the judicial authority.

In the event of referral to the court, penalties required should be appropriate to the seriousness of the facts, the personality and degree of involvement of the accused. It should be recalled in this respect that, in addition to a prison sentence of up to 10 years, natural persons are liable to a fine of EUR 1 million for active and passive bribery of foreign public officials, which may be increased to twice the proceeds of the offence. The penalties for influence peddling of a foreign public official are five-year imprisonment and a fine of 500,000 euros, which may also be increased to twice the proceeds of the offence28. When the natural persons involved have made it possible, through their cooperation with the administrative or judicial authority, to put an end to the offence or to identify the other perpetrators or accomplices, they should be allowed to benefit from the provisions of Article 435-6-1 of the Criminal Code, which provides that the prison sentence incurred is then reduced by half.

Finally, whenever it seems appropriate, additional penalties may be required, in particular the prohibition of civil rights, the prohibition to exercise the professional activity during which the acts were committed, the public dissemination of the decision pronounced or the confiscation of seized assets.

4.2 With regard to legal persons

In accordance with France’s international commitments, the effective criminal prosecution of legal persons must allow to put an end to the existence of commercial strategies based on the habitual use of these illicit practices.

It is therefore necessary to ensure that investigations establish elements that could justify the prosecution of legal persons for bribery or influence peddling of foreign public officials, whether as perpetrator/co-perpetrator or accomplice, in particular for acts committed abroad by their subsidiaries, intermediaries or suppliers.

A study of case law shows that the Supreme Court adopts a flexible interpretation of the conditions under which the criminal liability of a legal person may be incurred. It may be incurred through the actions of a delegator authority, such as a manager of a foreign subsidiary, or in the absence of identification of the natural person who committed the acts of corruption, when it appears with certainty that the offence was committed by an organ or representative, whoever it may be29.

Once the conditions for holding the legal person(s) involved in the corrupt scheme liable have been met, the most appropriate form of criminal response will have to be determined on a case-by-case basis.

The appropriateness of resorting to the conclusion of a CJIP will depend on the following factors:

  • the absence of a prior record of the legal person;
  • the voluntary disclosure of the facts;
  • the degree of cooperation with the judicial authority demonstrated by the managers of the legal person (in particular to enable the identification of the natural persons most involved in the corrupt scheme in question) .30.

In case a CJIP is concluded, particular attention will have to be paid to the specificities of the compliance programme imposed and to the determination of the amount of the settlement fine that will be proposed, in accordance with the guidelines specified in the Circular of 31 January 2018 presenting the Law of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life. When the conditions for the conclusion of a CJIP do not appear to be met, a CRPC may be considered. Referral to the criminal court may be reserved for the most serious and/or systemic facts and/or involving non-cooperative legal entities and/or not acknowledging the facts.

In the event of prosecution, in addition to a fine, it may be useful to require the public dissemination of the decision, compliance program, closure of one or more of the company’s establishments, confiscation of seized assets and/or exclusion from participation in public procurement contracts.

You will ensure that you systematically report to the Criminal Matters and Pardons Directorate, under the stamp of the Office of Economic, Financial and Social Law, Environment and Public Health, any corruption proceedings or influence peddling of foreign public officials reported by your prosecutors’ offices and, in general, any difficulties encountered in the implementation of this Circular.

  1. Corruption: Costs and Mitigating Strategies. May 2016.
  2. The Cost of Non-Europe in the area of Organised Crime and Corruption. March 2016.
  3. Loi organique n°2013-1115 du 6 décembre 2013 relative au procureur de la République financier.
  4. Décret n°2013-960 du 25 octobre 2013.
  5. Loi n°2007-1598 du 13 novembre 2007 relative à la lutte contre la corruption.
  6. Loi n°2013-1117 du 6 décembre 2013 relative à la lutte contre la fraude fiscale et la grande délinquance économique et financière.
  7. Loi n°2016-1691 du 9 décembre 2016 relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique.
  8. Loi n°2017-242 du 27 février 2017 portant réforme de la prescription en matière pénale.
  9. pr-financier.tgi-parisejustice.fr
  10. A penalty of 2 years’ imprisonment and €30,000 is imposed for divulging confidential information that could identify a whistleblower. It is also punishable by a sentence of one year’s imprisonment and €15,000 for obstructing, in any way whatsoever, the transmission of an alert.10.

    Similarly, special attention should be paid to complaints lodged by anti-corruption associations approved by the Ministry of Justice which, under Article 2-23 of the Code of Criminal Procedure, have the right to bring civil action in this type of cases, even if they are not direct victims. To date, three associations benefit from this approval: Sherpa11Initial approval issued by order of 19 February 2015. New approval issued on 20 November 2019.

  11. Initial approval issued by order of 19 February 2015, renewed on 15 February 2018.
  12. Initial approval issued by order of 30 October 2014, renewed on 12 October 2017.
  13. The Ordonnance of 26 November 2018 modifying the legislative part of the Public Procurement Code prohibits persons convicted of bribery or influence peddling of a foreign public official from bidding on public contracts (Article L.2141-1 of the Public Procurement Code (code de la commande publique).
  14. This media monitoring function is intended to be entrusted, for example, to the magistrate in charge of communication.
  15. Cass. crim. 10 juin 1948 : the offence of bribery «does not require that offers or promises of bribery have been accepted», this offence «is consummated as soon as the perpetrator has used […] promises, offers, gifts or presents for the purpose defined by law«. ; Cass. crim., 16 octobre 1985.
  16. Articles L.241-3 et L.242-6 of the Commercial Code.
  17. Cass., crim., 20 juin 1991 confirmed by Cass, crim. 27 octobre 1997 (« Carignon »).
  18. Crim. 9 juillet 1998
  19. Cass. crim. 15 mai 1974
  20. From the entry into force on the territory of the Republic of Slovenia of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, sums paid or advantages granted, directly or through intermediaries, to a public official within the meaning of Article I.4 of the said Convention or to a third party for the purpose of having that official act or refrain from acting in the performance of official duties, in order to obtain or retain a contract or other undue advantage in international business transactions, shall not be allowed as a deduction from the profits subject to tax.”
  21. Sub-Directorate for Diplomatic and Consular Privileges and Immunities.
  22. In addition to the immunities enjoyed by diplomatic and consular personnel under the Vienna Conventions of 18 April 1961 and 24 April 1963, Cour de Cassation also grants immunity from jurisdiction to organs and entitie emanating from a foreign State and its agents in respect of acts falling within the sovereignty of that State. (Cass., 1 er civ., 12 juin 1990 ; Cass., crim., 19 janvier 2010, « Joola » ; Crim. 16 octobre 2018).
  23. «OECD Report on Bribery Across Borders: An Analysis of the Offence of Bribery of Foreign Public Officials” (2014).
  24. Cass. crim. 27 novembre 2001, Cass. crim. 19 décembre 2001.
  25. Cass. crim. 9 novembre 1995.
  26. In order to determine the precise amount of the proceeds of the offence, reference may usefully be made to the calculation methods proposed in the StAR/OECD guide: «Identifying and Quantifying the Profits of Corruption» (2012).
  27. Cass. crim. 26 juin 2001, Cass. crim. 9 mars 2010. In a decision of March 14, 2018 in the «Oil for Food» case involving TOTAL, the criminal division ruled that «the offence of bribery of foreign public officials was committed, on behalf of the legal entity, by the management committee«. It thus considered that in order to engage the criminal responsibility of the legal entity, it is not necessary to demonstrate the individual responsibility of the natural person in charge, but to target the corporate body and involve all of its members.
  28. As also provided for in the DoJ’s criminal policy, as recalled in September 2015 in the «Yates Memo» («Individual Accountability for Corporate Wrongdoing»).