France: Anti-bribery jurisdictions
- What is the governing legislation?
The French Criminal Code
- What are the offences?
Under French law, corruption which includes active and passive corruption and influence peddling (“trafic d’influence”) are illegal. Passive and active corruption/ influence peddling are related to the same wrongful act but correspond to the behaviour of the bribee on the one hand, and of the briber on the other hand.
Passive corruption occurs when the bribee, a public official or a private actor unlawfully solicits or accepts gifts, promises or advantages in order to perform or refrain from performing an action in relation with or facilitated by his/her office, duty or mandate. When by soliciting or accepting gifts, promises or advantages the person uses its real or alleged influence, in view of obtaining for the briber distinctions, employment positions, tenders or any other favourable decisions, passive influence peddling occurs.
Conversely, active corruption is materialized when the briber, an individual or a corporate entity provides for gifts, promises or advantages, for the benefit of a public official or a private actor in exchange for the performance, refrain or delay of an action in relation to or facilitated by his/her office, duty or mandate.
When gifts, promises or advantages are solicited by a person in order for such person to use its real or alleged influence, in view of obtaining from public bodies or administrations, distinctions, employment positions, tenders or any other favourable decisions, active influence peddling occurs.
The Public officials concerned by corruption and influence peddling, whether active or passive are those performing a public duty, such as civil servants, persons vested with a public service mission (e.g. judicial administrators, bailiffs) or persons vested with an electoral mandate (members of parliament or senators, members of local councils).
While both active and passive corruption/ influence peddling are linked, they lead to distinct prosecutions.
Article 121-3 of the Criminal Code requires intent as a basis for criminal conviction.
- What are the exceptions/defences?
Article 432-11-1 of the Criminal Code states that a person revealing the bribery he is involved in risks a lighter penalty. Sentences of imprisonment (financial sanctions are not concerned) may be halved if the denunciation stops the infringement or identifies the perpetrators.
Failing that, a defence would only be successfully raised if it is based on the absence of intent or the failure to evidence the corruption (e.g. no evidence of a gift, promise or advantage). Moreover, the defender may demonstrate that there is no causal link between the action performed and the advantage received.
The public prosecutor is responsible for investigating criminal offences but an investigating judge (“juge d’instruction”) is usually appointed.
- What are the sanctions?
Individuals and corporate entities that are convicted for active corruption or influence peddling may be subject to the following penalties:
- Bribery of a public entity: ten years’ imprisonment and a fine of up to one million Euros which may reach a sum up to twice the amount gained (Art. 433-1 of the Criminal Code).
- Bribery of a private entity: five years’ imprisonment and a fine of up to EUR500,000 which may reach a sum up to twice the amount gained (Art. 433-2 of the Criminal Code).
Pursuant to Article 131-38 of the Criminal Code, where a legal person is convicted of bribery, the maximum applicable fine is five times the fine applicable to natural persons.
Article 433-23 of the same Code also provides for possibility for the judge to seize the sums unlawfully perceived.
On 30 March 2016, France released a draft bill (“Sapin II”) aiming to tighten its anti-corruption legislation.
The bill is currently under review in Parliament and should be adopted in the Autumn. The following main changes should be :
- Implementation of an anti-corruption public authority to prevent and help detect corruption;
- Protection of whistle-blowers, in particular against dismissals and identity disclosing;
- Facilitate prosecution and sanctions of acts of corruption performed outside France;
- Implementation of anti-corruption compliance programs for companies including a code of conduct for companies a compliance risks mapping, a valuation process of clients’ situation and accounting control procedures.