France has ratified a number of international treaties relating to bribery and corruption, including the following key ones:

• the EU Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States (signed by France on 26 May 1997, approved by Law No 99-423 of 27 May 1999 and ratified on 4 August 2000);
• the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (signed by France on 17 December 1997, approved by Law No 99-424 of 27 May 1999 and ratified on 31 July 2000);
• the Council of Europe Criminal Law Convention on Corruption of 27 January 1999 (signed by France on 9 September 1999, approved by Law No 2005-104 of 11 February 2005 and ratified on 25 April 2008);
• the Council of Europe Civil Law Convention on Corruption of 4 November 1999 (signed by France on 26 November 1999, approved by Law No 2005-103 of 11 February 2005 and ratified on 25 April 2008);
• the Additional Protocol to the Criminal Law Convention on Corruption (signed by France on 15 May 2003, approved by Law No 2007-1154 of 1 August 2007 and ratified on 25 April 2008); and
• the United Nations Convention Against Corruption of 31 October 2003 (signed by France on 9 December 2003, approved by Law No 2005-743 of 4 July 2005 and ratified on 11 July 2005).

The main national legal provisions relating to anti-bribery and anti-corruption are enshrined in the Penal Code and the Code of Criminal Procedure.

Law No 2016-1691 (the “Sapin II Law”) was signed on 9 December 2016 and entered into force on 11 December 2016 in respect of most of its provisions. The Sapin II Law strove to make further progress in the fight against corruption by:

• introducing a new duty to prevent bribery or influence-peddling in France or abroad for chairs, chief executives and managers of large private and public companies in the form of setting up a comprehensive compliance programme;
• creating the French Anti-Corruption Agency (Agence Française Anticorruption, or AFA) to monitor the quality and efficiency of compliance measures implemented within the companies and public entities concerned;
• introducing the offence of influence-peddling of foreign public officials, along with a new ancillary penalty consisting of a compliance programme (programme de mise en conformité);
• extending French judges’ jurisdiction over acts of bribery and influence-peddling committed abroad;
• introducing a new ADR mechanism known as a “judicial public interest agreement” (convention judiciaire d’intérêt public, or CJIP) for legal entities suspected of acts of bribery, influence-peddling, or laundering of tax fraud proceeds (extended to tax fraud in 2018 and to environmental offences in 2020 by Law No 2020-1672); and
• strengthening the protection of whistle-blowers ‒ this was further reinforced by Law No 2022-401 aimed at improving the protection of whistle-blowers.

Law No 2020-1672 relating to the European Public Prosecutor’s Office, environmental justice and specialised criminal justice was signed on 24 December 2020, entered into force on 26 December 2020, and provided for the following.

• The implementation of the European Public Prosecutor’s Office (EPPO), which is responsible for investigating, prosecuting and bringing to justice the perpetrators of – and accomplices to – criminal offences affecting the financial interests of the EU, which are provided for in Directive (EU) 2017/1371 and include:
1. misappropriation of EU funds;
2. active and passive bribery;
3. transnational VAT fraud when at least two EU member states are involved and more than EUR10 million are at stake; and
4. customs offences and related money laundering.
• The abolition of the requirement for legal entities to acknowledge facts and criminal qualification upon reaching a judicial public interest agreement at the end of the judicial investigation. The removal of such a requirement, which only existed within the framework of a judicial investigation, fully asserts the autonomy of the CJIP procedure in relation to that of the “appearance on prior admission of guilt” procedure (comparution sur reconnaissance préalable de culpabilité, or CRPC).

More recently, Law No 2022-217 of 21 February 2022 on differentiation, decentralisation, deconcentration and various measures to simplify local public action enshrined the right of all local elected representatives to contact a compliance officer for confidential advice on any ethical issues they may encounter in the course of their duties, which marks a step forward in preventing breaches of probity at a local level.

On 16 January 2023, the National Financial Prosecutor’s Office released new guidelines, enriched by the experience gained through the negotiation of 15 CJIPs concluded to date in the areas of bribery, influence peddling, tax fraud and laundering of such offences. First of all, these guidelines recalled that the company’s good faith is required to enter into discussion with the Prosecutor’s Office. Good faith is thus assessed on the basis of the following criteria: spontaneous disclosure of the facts within a reasonable period of time, spontaneous implementation of a compliance programme, rapid adoption of corrective measures to reinforce the quality and effectiveness of the existing programme, possible changes to its management team and prior compensation of the victims. They also specified the method for calculating the amount of the public interest fine: it should take the benefits derived from the commission of the offence into account (for example, financial profits from a fraudulently obtained contract), to which are applied mitigating factors (for example, spontaneous disclosure) and aggravating factors (for example, obstruction of the investigation).

On 19 March 2023, the AFA published practical information sheets listing publicly available information databases that could be used for third-party integrity assessment. This document aims to search and analyse information of any kind that makes it possible to reasonably determine the risk of being involved, more or less directly, in the commission of breaches of probity.

On 15 May 2023, the AFA released other practical information sheets, presenting a selection of indices that may be used in corruption risk mapping and third-party assessment regarding a specific geographical area. These indices include: the World Bank’s Global Governance Indicators, the Eurobarometer regional barometer for Europe, the Corruption Risk Forecast of the European Research Centre for Anti-Corruption and State-Building (ERCAS), the Global Corruption Index (GCI) of Global Risk Profile (GRP), the Trace Bribery Risk Matrix of the Canadian association Trace International and the Transparency International’s Global Corruption Barometer.

The EPPO commenced its activities on 1 June 2021. The supranational prosecutor’s office operates on two levels.

• The central level, located in Luxembourg, comprises the European Chief Prosecutor and a college of 22 European Prosecutors. The French European Prosecutor is Frédéric Baab.
• The decentralised level is made up of European Delegated Prosecutors (EDPs), who are located in each of the participating EU countries and in charge of investigating, prosecuting and bringing to judgment cases where the financial interests of the EU are at stake. Among the 82 EDPs appointed, four have been appointed in France (namely Emmanuel Chirat, Mona Popescu Boulin, Emmanuelle Fraysse, and David Touvet). Law No 2020-1672 dated 24 December 2020 created an unprecedented procedural framework in France, mixing investigations (enquête) and judicial inquiry (instruction). The four EDPs carry out the duties of the Public Prosecutor, in addition to those of the Advocate General at the court of appeal.

Indeed, the EDP replaces the investigating judge (juge d’instruction), who is no longer involved. The EDP takes the judge’s place in making the necessary decisions regarding indictment (mise en examen), interviews and confrontations, hearing of witnesses, admissibility of civil claims and hearing of the plaintiff (recevabilité de la constitution de partie civile et audition de la partie civile), transport, letters rogatory (commission rogatoire), forensic investigations, judicial supervision (contrôle judiciaire), search warrants and summons.

However, the power to place under house arrest (assignation à résidence) or to issue arrest warrants (mandats d’arrêt) is assigned to the custody judge (juge des libertés et de la détention), who also retains jurisdiction over pre-trial custody.

At the end of the inquiry, the EDP will decide on the direction of the case and issue an order ‒ in much the same way as an investigation judge ‒ under the supervision of a Permanent Chamber, which consists of the Chief Prosecutor and two European Prosecutors. In accordance with the decision taken by the Permanent Chamber, the EDP can close the case, bring the case before the Criminal Court of Paris, or propose alternative measures to prosecution.

On 1 March 2023, the EPPO published its annual report on its activities in 2022. The report showed that 35 new investigations had been opened in France. 58 investigations in total are carried out, 21 of which are cross-border (including four concerning bribery), for total estimated damages of EUR389.7 million.

Under French criminal law, the prosecution of bribery revolves around the status of the person bribed so that a specific offence exists for each type of person. The French legislator has criminalised bribery of domestic public officials (Articles 433-1 and 432-11 of the Penal Code), bribery of domestic judicial staff (Article 434-9 of the Penal Code), bribery of domestic private individuals (Articles 445-1 and 445-2 of the Penal Code), bribery of foreign or international public officials (Articles 435-1 and 435-3 of the Penal Code) and bribery of foreign or international judicial staff (Articles 435-7 and 435-9 of the Penal Code).

A bribe can be defined as any offer, promise, donation, gift or reward unlawfully offered or requested that will induce or reward the performance or the non-performance by a person of an act pertaining to their position.

The scope of bribery is extensive under French law, covering all kinds of advantages irrespective of their magnitude. In a decision handed down in 2018 (Paris Court of Appeal, 10 April 2018, No 16/11182), the Paris Court of Appeal instituted the “bundle of indicators” method (méthode du faisceau d’indices) to determine the existence of a corruption pact. Thus, the following indicators were therefore considered relevant in a case involving three litigious consultancy contracts:

• the absence or inadequacy of precise and conclusive documents;
• the inadequacy of the consultant’s material and human resources in relation to the importance of the work claimed;
• the percentage-based remuneration; or
• the unjustified obtaining of the contract by the consultant’s client.

The same Court of Appeal specified that the bundle of indicators identified in this decision is not exhaustive and that the court may consider other elements to determine the existence of a corruption pact (Paris Court of Appeal, 15 September 2020, No 19/09058).

In each situation, a distinction is made between active bribery and passive bribery, which allows for the separate prosecution of the bribe-giver and the bribe-taker.

Active bribery is the act of (i) unlawfully offering, at any time, directly or indirectly, advantages (as previously listed) to a person (public official, judicial official or private individual) for the benefit of that person or of a third party, to induce that person to perform or refrain from performing, or because that person has performed or refrained from performing, any act pertaining to his or her position, duties, mandate or activities, or facilitated thereby, or (ii) accepting the proposal of a person who unlawfully requests, at any time, directly or indirectly, any such advantages in exchange for these acts.

In contrast, passive bribery is the act whereby a public official, judicial official or private individual unlawfully requests or accepts advantages on their own or a third party’s behalf either directly or indirectly to perform or refrain from performing ‒ or because that person has performed or refrained from performing ‒ any act pertaining to their position, duties, mandate or activities (or facilitated thereby). The mere receipt of a bribe thus constitutes an offence in itself.

Influence-peddling (trafic d’influence) is an offence that occurs when any private person or official, who has real or apparent influence on the decision-making of an authority, exchanges this influence for an undue advantage (ie, an offer, promise, donation, gift or reward). The French legislator has criminalised active and passive influence-peddling where the decision-maker is:

• a domestic authority or public administration (Article 433-2 of the Penal Code);
• a domestic judicial official (Article 434-9-1 of the Penal Code);
• public official from a public international organisation (Articles 435-4 and 435-2 of the Penal Code);
• a judicial official from an international court (Articles 435-8 and 435-10 of the Penal Code); or
• following the Sapin II Law, a public official from a foreign state (Articles 435-4 and 435-2 of the Penal Code).

Furthermore, the Penal Code provides for specific offences if the influence-peddler is a public official and the decision-maker is a domestic authority or public administration (Articles 433-1 and 432-11-2° of the Penal Code).

In practice, corruption may lead to accounting stratagems that involve using false invoices to conceal the benefits obtained or paid in financial statements. Therefore, it is also an offence for the chair, directors, members of the executive or supervisory board, de jure or de facto managers to publish or provide the shareholders with annual accounts that do not accurately reflect the company’s results. Individuals may incur a prison term of up to five years and a fine of up to EUR375,000 and additional penalties (Article L.241-3-3° and Article L.242-6-2° of the Commercial Code), whereas legal entities may incur a fine of up to EUR1.876 million.

The following behaviours by public officials may constitute criminal offences under the French anti-corruption law:

• embezzlement of public funds (concussion) (Article 432-10 of the Penal Code);
• unlawful taking of interests (prise illégale d’intérêts) (Article 432-12 of the Penal Code);
• misappropriation of public funds (détournement de fonds publics) (Article 432-15 of the Penal Code); and
• favouritism (favoritisme) (Article 432-14 of the Penal Code).

Following the High Authority for Transparency in Public Life’s (HATVP) proposal, the definition of the offence of unlawful taking of interests was modified by Law No 2021-1729. To be prosecuted, the interest in question must be “likely to compromise his/her impartiality, independence or objectivity” whereas “any interest” was concerned before (Article 432-12 of the Penal Code). Nonetheless, in a decision handed down on 5 April 2023, the Court of Cassationstated that the provisions of Article 432-12 of the Penal Code, as amended by Law No 2021-1729, were equivalent to those contained in its previous wording, by which the legislator had sought to guarantee, in the general interest, the independent, impartial and objective exercise of public functions (Court of Cassation, Criminal Chamber, 5 April 2023, No 21-87.217).

Prosecution may concern parties other than the bribe-giver and the bribe-taker) who were involved to varying degrees in committing the offence. Specifically, under French criminal law, an individual or legal entity who knowingly ‒ by providing aid or assistance ‒ facilitates the preparation or commission of an offence, or induces through any advantage or gives instructions to commit an offence, is considered to be an accomplice to that offence and is subject to the same penalties as the principal perpetrator of the offence (Articles 121-6 and 121-7 of the Penal Code).

Furthermore, individuals and legal entities that engage in the concealment (Articles 321-1 and 321-12 of the Penal Code) or the laundering (Articles 324-1 and 324-9 of the Penal Code) of corruption offences may also be prosecuted.

As of 1 March 2017, the limitation period for corruption offences was increased from three years to six years after the date the offence was committed (Article 8 of the Code of Criminal Procedure).

In addition, to enable prosecution, the starting point of the limitation period for secret (occultes) and concealed (dissimulées) offences has been delayed to the date on which they were or could have been discovered under circumstances enabling prosecution (Article 9-1 of the Code of Criminal Procedure). Nonetheless, in any event, prosecution against offences such as bribery would be time-barred 12 years after the date on which the offence was committed.

As a general rule, the perpetrator of an offence can be subject to criminal prosecution in France when:

• the offence or any of its constituent elements is committed in French territory;
• the victim is French;
• the perpetrator is French and a similar offence exists in the country in which it is committed; or
• jurisdiction is granted to French courts by an international convention to which France is a party.

With regard to bribery and influence-peddling, the third condition was considerably softened by the Sapin II Law. The dual criminality requirement (Article 113-6 of the Penal Code) was abolished. Since the entry into force of the Sapin II Law, any French person who has committed bribery – whether as a bribe-taker and/or a bribe-giver – or influence-peddling outside French territory can now be prosecuted in France in all circumstances. Moreover, French courts still have jurisdiction over an indicted foreigner who did not commit any unlawful act in French territory, as long as their acts had inextricable links with acts committed by other indicted persons in France (Court of Cassation, Criminal Chamber, 20 September 2016, No 16-84.026).

In addition, application by French courts of the principle of non bis in idem regarding countries outside the EU differs according to the basis of their jurisdiction.

• In the case of extraterritorial jurisdiction, this principle applies to foreign decisions and agreements that have become final (Article 113-9 of the Code of Criminal Procedure).
• In the case of territorial jurisdiction, the Court of Cassation rejects the application of the non bis in idem principle to foreign decisions and agreements.

The principle of non bis in idem may be invoked in intra-EU relations, regardless of the territorial or extraterritorial basis of French jurisdiction.

Whenever one of the constituent elements of the corruption offence has been committed in France, French courts have jurisdiction (Court of Cassation, Criminal Chamber, 17 January 2018, No 16-86.491; Court of Cassation, Criminal Chamber, 14 March 2018, No 16-82.117 and Paris Court of Appeal, 15 May 2020, No 18/03310).

In intra-EU relations, the principle of non bis in idem may be invoked, regardless of the territorial or extra-territorial basis of French jurisdiction.

Legal entities may also be criminally liable for all criminal offences, including corruption offences, provided that the offences are committed on their behalf by their corporate bodies or representatives (Article 121-2 of the Penal Code). Public Prosecutors must first establish the material existence of the offence committed by an individual and then demonstrate that the perpetrator was a body or representative of the legal entity.

However, the liability of legal entities does not preclude individuals from being also liable if they are perpetrators of or accomplices to an offence. Prosecution against an individual occurs independently of any prosecution that may be initiated against the legal entity.

There is also a risk of civil liability under Article 1240 and/or Article 1242 paragraph 5 of the Civil Code in the event of a sentence for corruption.

A compensation claim may be carried out by:

• any person who has suffered damage resulting from corruption (eg, a competitor of the offending company); or
• approved anti-corruption associations, such as Transparency International France and Sherpa (so far), which are entitled to act as a civil party in any criminal proceedings relating to corruption (Article 2-23 of the Code of Criminal Procedure).

Legal entities may be required to pay compensation even in the event that a CJIP is reached.

In the event of a merger by absorption, the Court of Cassation has ruled for the first time that the acquiring company can be criminally liable for an offence committed by the organs or representatives of the absorbed company prior to the merger (Court of Cassation, Criminal Chamber, 25 November 2020, No 18-86.955; Court of Cassation, Criminal Chamber, 13 April 2022, No 21-80.653).

The French anti-corruption law does not provide for any specific defences.

Nevertheless, per Article 132-59 of the Penal Code, the perpetrator may be exempted from penalties, provided that:

• their social rehabilitation has been established;
• the damage caused by the offence has been remedied; and
• the disturbance arisen from the offence has ceased.

The judge has full discretion in granting any such exemption.

As explained in 4.1 Defences, the French anti-corruption law does not provide for any specific defences.

A conviction for corruption is possible even where the amounts at stake are small. However, this may be viewed as a mitigating factor when the court determines the quantum of the penalty to be imposed.

In France, no sector is excluded from the scope of corruption law.

Co-operation with Investigators

Under French law, perpetrators of offences who co-operate with investigators and prosecutors are not entitled to special treatment. However, the court may consider the co-operation of the accused person during the investigation and throughout the proceedings ‒ and, in the case of legal entities, the adoption of compliance measures ‒ to be mitigating factors in determining the quantum of the penalty to be imposed.

Self-Reporting

The Sapin II Law introduced the opportunity for perpetrators of, or accomplices to, the bribery of public officials or judicial staff to have their penalties reduced by half if – by informing the administrative or judicial authorities – they made it possible to put a stop to the offence or identify any other perpetrators or accomplices (Articles 432-11-1, 433-2-1, 434-9-2, 435-6-1 and 435-11-1 of the Penal Code). This does not apply in cases of private bribery.

Leniency

French anti-corruption law does not provide for any leniency measures, apart from the aforementioned self-reporting regime. However, the court is free to adjust the penalty by taking various factors into account.

Admission of Guilt

French law does not yet have an equivalent to the US process of plea-bargaining. However, Law No 2011-1862 of 13 December 2011 extended the scope of the CRPC to corruption offences. Under this procedure, the Public Prosecutor’s Office is entitled to offer directly and without a trial ‒ either on its own initiative or at the request of the accused (or their lawyer) ‒ one or more penalties to a natural or legal person who acknowledges the acts of which they are accused (Article 495-7 of the Code of Criminal Procedure).

If the accused accepts the sanction(s) proposed, such sanction(s) still have to be approved by the presiding judge of the High Court. (For an example of a recent case where the CRPC was not approved, see 7.6 Recent Landmark Investigations or Decisions Involving Bribery or Corruption.) The court judgment is deemed a conviction.

On 17 May 2022, the Criminal Chamber of the Court of Cassation confirmed the decision of the President of the Paris High Court to declare inadmissible the second homologation request submitted by the Public Prosecutor’s Office following the President’s refusal to approve the penalty proposed by the Public Prosecutor (Court of Cassation, Criminal Chamber, 17 May 2022, No 21-86.131). In this case, three months after the President refused, the Public Prosecutor had referred a new penalty proposal to the President, which the latter declared inadmissible. The Court of Cassation stated that the prosecuting authorities are unable to submit a new request for approval following the first refusal to approve a CRPC.

In June 2022, a case was brought to the European Court of Human Rights (ECHR) under Articles 6, 8 and 10 of the European Convention on Human Rights by victims (ie, a French citizen and an association) who argued that the lack of an available appeal against the CJIP’s validation order had violated their right to an effective judicial remedy. On 30 March 2023, the Court declared their requests inadmissible and specified that even assuming that Article 6, Section 1 was applicable to the CJIP procedure, no violation of the right of access to a court could be found in this case. Indeed, firstly, the applicants had not exercised their right to seek compensation, even though they could have done so before and during the validation hearing. Secondly, French law expressly provided that the execution of a CJIP would not preclude the right of victims to pursue compensation before a civil court. However, there was nothing to indicate that the claimants were prevented from initiating civil proceedings (ECHR, Ruffin and Fakir association against France, No 29854/22 and 29863/22).

Settlement

For legal entities, the main benefit of the CJIP is the absence of any acknowledgement of guilt, which also means the absence of any mention in the judicial record (contrary to the CRPC procedure). Another advantage is protection from the risk of exclusion from public procurement procedures ‒ a risk to which they would be exposed in the event of conviction by a court for bribery of domestic or foreign public officials (Article 131-39 of the Penal Code and Article L.2141-1 of the Code of Public Procurement).

Under this procedure, the Public Prosecutor and the investigating magistrate are entitled to initiate a settlement before the initiation of prosecution or before the end of the investigation respectively (Article 180-2 of the Code of Criminal Procedure). (This must be at the request of, or in agreement with, the Public Prosecutor in the latter case.)

The accused legal entity is then offered the chance to enter into an agreement containing the obligation(s) to:

• set up a compliance programme for a maximum of three years under the supervision of the AFA;
• compensate any identified victims in an amount and following modalities determined in the convention; and/or
• pay a public interest fine that is:
1. proportionate to the advantages gained from the offences;
2. limited to 30% of the annual average turnover (calculated on the basis of the last three turnovers available); and
3. presented with the option to spread the penalty over a maximum period of one year.

During a subsequent validation hearing, the judge decides whether to validate the proposed agreement. Once validated, the legal entity has ten days to withdraw from the agreement. Following Law No 2020-1672 dated 24 December 2020, each CJIP shall be published on the Ministry for Justice and Ministry for Economy’s websites. The AFA relays these publications on its website for conventions dealing with corruption.

Individuals who commit the offences of active bribery and passive bribery of domestic public officials and judicial staff may be imprisoned for a term of up to ten years, as well as ordered to pay a fine of up to EUR1 million. The fine may be increased to double the proceeds generated by the offence (Articles 433-1-1°, 432-11-1°, 434-9 of the Penal Code). From 20 September 2019, individuals face a fine up of up to EUR2 million if they commit such offences:

• in an organised gang; and
• with an impact on the revenue collected or the expenditure incurred by any EU office or institution.

Ancillary penalties may also be imposed, such as prohibitions from:

• holding public office;
• engaging in the professional or social activity – during the performance of which, or in connection with the performance of which, the offence was committed – for a period of up to five years; and
• directing, administering, managing or controlling a company in any capacity, permanently or for a period of up to 15 years.

Additionally, publication of the judgment may be ordered and the item that was (intended to be) used to commit the offence ‒ or any item that is a proceed of the offence – may be confiscated (Articles 433-22, 433-23, 432-17, and 434-44 of the Penal Code).

Legal entities are liable for a fine of EUR5 million, which may be increased to double the proceeds generated by the offence, and ancillary penalties (Articles 433-25 and 434-47 of the Penal Code).

Bribery of domestic judicial staff for the benefit or to the detriment of a person who is the subject of criminal prosecution is punishable by a 15-year term of imprisonment (Article 434-9 of the Penal Code).

Bribery of Foreign Officials

Active or passive bribery of foreign public officials or international judicial staff is punishable by penalties that are similar to the ones provided for bribery of domestic officials (Articles 435-3, 435-1, 435-14 and 435-15, 435-9, 435-7 and 435-15 of the Penal Code).

Bribery of Private Individuals

Active and passive bribery of private individuals by other individuals is punishable by a five-year term of imprisonment and a fine of EUR500,000, which may be increased to double the proceeds generated by the offence (Articles 445-1 and 445-2 of the Penal Code), as well as ancillary penalties (Article 445-3 of the Penal Code). Legal entities are liable for a fine of EUR2.5 million, which may be increased to double the proceeds generated by the offence, as well as ancillary penalties (Article 445-4 of the Penal Code).

Influence-Peddling

Penalties similar to bribery are provided for influence-peddling (Articles 433-2, 434-9-1, 434-9-1, 435-4, 435-2, 435-8 and 435-10 of the Penal Code).

Unlawful Taking of Interests

Unlawful taking of interests remains punishable by a five-year term of imprisonment and a fine of EUR500,000, which may be increased to double the proceeds generated by the offence (Article 432-12 of the Penal Code).

Repeated Offences

In the event of a repeated offence, the maximum penalties incurred are doubled. As regards individuals, this applies when:

• the perpetrator of acts of corruption punishable by a ten-year prison term has been convicted in the past for a felony or any misdemeanour punishable by a ten-year prison term and fewer than ten years have elapsed between the expiry or prescription date of the first penalty and the date on which the new offence was committed (Article 132-9, Section 9 of the Penal Code);
• the perpetrator of acts of corruption punishable by a term of imprisonment of more than one year and less than ten years has been convicted in the past for a felony or any misdemeanour punishable by a ten-year prison term and fewer than five years have elapsed between the expiry or prescription date of the first penalty and the date on which the new offence was committed (Article 132-9, Section 2 of the Penal Code); and
• the perpetrator of acts of corruption has been convicted in the past for the same corruption offence and fewer than five years have elapsed between the expiry or prescription date of the first penalty and the date on which the offence was repeated (Article 132-10 of the Penal Code).

Similar provisions apply to legal entities that have been convicted for a felony or misdemeanour prior to committing acts of bribery (Articles 132-13 and 132-14 of the Penal Code).

Public Interest Fines in the Event of a Judicial Public Interest Agreement

According to the National Financial Prosecutor’s Office’s guidelines released on 16 January 2023, the public interest fine has two dimensions:

• a restitutive dimension: it is equal to the amount of the benefits derived from the breaches observed; and
• an afflictive dimension: it is calculated on the basis of the benefits derived from the breaches observed, to which mitigating factors and aggravating factors are applied.

Firstly, the Public Prosecutor draws up with the company a list of the direct and indirect benefits resulting from the offence(s) covered by the CJIP, which correspond to:

• the marginal profit generated by the disputed acts (profits derived from a fraudulently obtained authorisation or contract);
• the expected future profits (staggered performance contract); and
• the gains in market share, know-how and visibility (even if not recognised in the company’s financial statements).

Secondly, nine aggravating and eight mitigating factors are applied to the amount of the benefits derived from the breaches:

• aggravating factors:
1. any form of obstruction of the investigation;
2. large size of company;
3. repeated nature of the acts;
4. legal, tax or regulatory history;
5. use of the company’s resources to conceal;
6. creation of tools to conceal;
7. involvement of a public official; and
8. serious disturbance of public order; and
• mitigating factors:
1. spontaneous disclosure;
2. uniqueness of the occurrence;
3. elevation of internal investigations;
4. active co-operation;
5. corrective measures;
6. effectiveness of the internal whistle-blowing system;
7. unequivocal acknowledgement of the facts; and
8. prior compensation for victims.

The discretion of judges to determine penalties is one of the fundamental principles of French criminal law. The judge therefore has full discretion to choose whichever penalties they deem appropriate from those applicable to the offence and to determine their quantum. There are no minimum sentences, with the only restriction being the maximum prescribed by law.

In all cases, however, the judge must explain the grounds for their decision if they impose a prison sentence that is not suspended and do not allow for adjustments to the penalty.

Article 17 of the Sapin II Law requires the implementation of a corruption prevention plan for:

• chairpersons, general managers and company managers;
• members of the management boards of public limited companies; and
• chairpersons and general managers of public industrial and commercial establishments that either:
1. employ at least 500 employees; or
2. belong to a group with a registered head office in France and a turnover (or consolidated turnover) in excess of EUR100 million.

Persons subject to this obligation must, therefore, take measures under the supervision of the AFA to prevent and detect the commission – in France or abroad – of acts of corruption or influence-peddling by:

• adopting a code of conduct, in which the behaviour to be prohibited is described, and integrating such code into the internal regulations;
• implementing an internal alert system;
• establishing a risk map detailing possible external solicitations, according to the sector and geographical areas;
• implementing a procedure for evaluating customers, first-tier suppliers and intermediaries;
• carrying out internal or external accounting controls;
• providing training to the most exposed managers and staff;
• introducing disciplinary sanctions; and
• establishing a system for internal monitoring and evaluation of the measures taken.

The legislator has empowered the AFA to assess the quality and effectiveness of the preventive measures. In the event of non-compliance, its enforcement committee has the authority to impose graduated sanctions (ranging from warnings to fines of up to EUR200,000 for individuals and EUR1 million for legal entities) and injunction procedures to bring internal procedures into line – irrespective of whether any finding of a criminal offence in relation to acts of corruption or influence-peddling is communicated to the Public Prosecutor.

Article 25 of the Sapin II Law has set out the legal regime applicable to lobbying activities in France.

According to the HATVP’s guide published in June 2022, three cumulative conditions are necessary to be qualified as a lobbyist:

• being:
1. a legal entity (private law entity, public establishment) whose director, employee or member carries out a lobbying activity; or
2. an individual who professionally carries out a lobbying activity on an individual basis;

• carrying out a lobbying activity as:
1. main activity, ie, more than half of his or her time over six months; or
2. regular activity, ie, at least ten communications over the last 12 months; and

• taking the initiative to contact a public official to influence a public decision.

Companies and individuals meeting the above-mentioned conditions must register with a dedicated digital register.

Since 1 July 2022, the scope of this registration obligation has been extended to lobbyists involved with other public officials holding certain local executive functions (such as presidents of regional or departmental councils, mayors of municipalities with more than 100,000 inhabitants, directors of hospitals).

In the public sector, Article 40 of the Code of Criminal Procedure requires all public officials and civil servants who – in the course of performing their duties ‒ become aware of a felony or misdemeanour to inform the Public Prosecutor’s Office and provide it with all relevant information. In 2022, the AFA notified on this ground two cases involving acts of active bribery to the competent Prosecutor’s Offices.

Under Article L.561-2 12° of the Monetary and Financial Code, public officials and civil servants are also required to report to Tracfin (the agency responsible for dealing with illegal financial circuits) all transactions involving sums that they know or suspect – or have good reasons to suspect – either:

• originate from an offence punishable by a prison sentence of more than one year; or
• contribute to financing terrorism.

On 27 September 2023, the Commercial Chamber of the Court of cassation ruled for the first time that disregarding one’s obligations to combat money laundering and financing terrorist can be construed as unfair competition. The Court held that compliance with the obligations set out in Articles L. 561-1 et seq of the Monetary and Financial Code “necessarily entails additional costs” for the companies concerned and concluded that failure to comply could constitute “unfair competition”, the gain generated being analysed as “an undue competitive advantage” (Court of cassation, Commercial Chamber, 27 September 2023, No 21-21.995). Given the generality of the formula used by the Commercial Chamber, this decision seems transposable to other cases and could be extended to other compliance obligations, in particular those provided for in the Sapin II Law. The commission of the offence of bribery could thus lead an ousted competitor to base its civil action not only on the offence itself but henceforth on any shortcomings in the compliance system of its competitor that may have made the bribery possible.

In the private sector, statutory auditors are required – under criminal penalties (Article L.820-7 of the Commercial Code) – to report any criminal acts of which they become aware to the Public Prosecutor.

Since the Sapin II Law, under certain conditions, whistle-blowers benefit from immunity against retaliatory measures by their employer (Article L.1132-3-3, Section 2 of the Employment Code) and against criminal prosecution for breach of secrecy (Article 122-9 of the Penal Code).

Law No 2022-401 of 21 March 2022 aimed at strengthening the protection of whistle-blowers entered into force on 1 September 2022.

Broadening the Definition of a Whistle-Blower

Firstly, this law modified the definition provided for in the Sapin II Law.

The definition of a whistle-blower was made more flexible as it is no longer necessary for whistle-blowers to act in a “disinterested manner” (which was an ambiguous notion, particularly in cases of conflict between the whistle-blower and their employer); instead, they must act without “direct financial compensation”. Moreover, in a professional context, the whistle-blower is no longer required to have personal knowledge of the facts subject to their report.

Revamping the Reporting Process

Secondly, Law No 2022-401 revamped the reporting process. A whistle-blower is no longer compelled to report within organisation as a priority. Instead, they may choose to report either internally to the supervisor, the employer or any designated adviser or externally to an administrative, judicial or professional authority (Article 8, II of the Sapin II Law).

Strengthening Whistle-Blower Protection

Thirdly, in order to facilitate reports, Law No 2022-401 improved whistle-blowers’ protection by extending the list of prohibited retaliation measures – for example, intimidation and damage to reputation, especially on social media networks (Article 10-1, III of the Sapin II Law).

On 3 October 2022, France issued Decree No 2022-1284 governing procedures for collecting and processing whistle-blowers’ reports. This provides guidance on the application of Law No 2022-401 to those entities – ie, companies with more than 50 employees, municipalities with more than 10,000 inhabitants, and state administrations – that are under an obligation to set up appropriate alert management procedures to escalate reports from members of the personnel or external staff (Article 8 of the Sapin II Law).

The above-mentioned entities shall set up a channel for receiving alerts, which allows any person to send an alert in writing or orally.

The AFA is responsible for dealing with reports of corruption acts.

The protective measures against dismissal, obstruction, identity disclosure and criminal prosecution for breach of secrecy listed in 6.4 Protection Afforded to Whistle-Blowers can be viewed as sufficient incentives to report misdemeanours. Other incentives, such as financial rewards, do not apply – except in the field of tax fraud.

The main national legal provisions relating to whistle-blowing are enshrined in the Penal Code (Article 122-9) and the Employment Code (Article L.1132-3-3, Section 2).

See 1. Legal Framework for Offences.

The Public Prosecutor’s Office is empowered to decide whether it is appropriate to institute proceedings, although civil claimants may also initiate prosecution.

On 1 February 2014, a National Financial Prosecutor’s Office was created to specialise in economic and financial matters and, more specifically, in corruption and tax fraud matters.

Cases investigated and prosecuted by the National Financial Prosecutor are brought to an investigating magistrate in Paris for deeper investigation and/or directly to the dedicated Criminal Chamber of the Paris High Court (32nd Chamber) for trial.

Aside from those specific powers, prosecutors at eight inter-regional specialised courts are also granted expanded territorial jurisdiction over a certain number of economic and financial offences, including some corruption offences, in highly complex matters. After carrying out a pre-trial investigation, the prosecutor may bring the case to an investigating magistrate from the same inter-regional specialised court for deeper investigation and/or directly to a specialised criminal chamber of this court for trial.

The various prosecutorial bodies are assisted by a specialised investigative service, the Central Office for the Fight Against Corruption and Financial and Tax Offences (Office Central de Lutte contre la Corruption et les Infractions Financières et Fiscales, or OCLCIFF), which was created in 2013.

A number of administrative bodies have also been created to deal with tasks that may relate to corruption issues. An Agency for the Management and Recovery of Seized and Confiscated Assets in Criminal Matters (Agence de Gestion et de Recouvrement des Avoirs Saisis et Confisqués en Matière Pénale, or AGRASC) was created by Law No 2010-768 of 9 July 2010. The AGRASC’s duties include recovering assets seized in criminal proceedings and conducting pre-judgment sales of confiscated assets when they are no longer needed as evidence or if they may lose value (2,453 goods were sold in 2021, representing EUR13.2 million). Tracfin is the sole centre for collecting suspicions reported by the professions regulated by the AML measures. It receives all reports concerning suspected acts of corruption.

As mentioned in 6.1 National Legislation and Duties to Prevent Corruption, the AFA is entitled to inform the Public Prosecutor about any act of corruption of which it might become aware (Article 3, Section 6 of the Sapin II Law).

In 2022, the AFA carried out 39 new controls, comprising three “enforcement controls” ‒ including two “compliance programme” controls ‒ and 36 “own-initiative” controls.

In 2023, the European Public Ethics Network – created in June 2022 at the initiative of the HATVP and intended to promote public integrity and transparency within the European Union – welcomed a 12th member, the Transparency Entity of Portugal. On 5 July 2023, the President of the HATVP held a virtual meeting with the Network’s members. They welcomed the preventive dimension of the proposal for a directive on fighting corruption presented on 3 May 2023 by the European Commission (see 8.2 Likely Changes to the Applicable Legislation of the Enforcement Body) but regretted the lack of ambition of the project for a European Ethics Body, insofar as it does not have any power of investigation or sanction.

Requests for information from the Public Prosecutor or a police officer can be sent to the holder of relevant information “by any means” (Articles 60-1 and 77-1-1 of the Code of Criminal Procedure).

For the execution of their tasks, AFA agents are entitled to request the communication of any professional document or any information held by the entity controlled. Pursuant to Decree No 2017-329 of 14 March 2017, they are provided with an authorisation card when they carry out on-the-spot checks, which can only take place in business premises (excluding the private person’s home) and during working hours. The representative of the entity must be informed that they can be assisted by the person of their choice. Any obstruction may be punished by a fine of EUR30,000 (Article 4 of the Sapin II Law).

The Public Prosecutor is free to initiate prosecution against a person suspected of an offence, pursuant to the principle of discretionary prosecution (Article 40 of the Code of Criminal Procedure) and in light of the criminal policy defined by the Ministry for Justice and the General Prosecutor (Article 39-1 of the Code of Criminal Procedure). In any given matter, the Public Prosecutor can discretionarily decide whether to:

• initiate prosecution by summoning the accused person directly before a criminal court or by asking an investigating magistrate to carry out deeper investigations;
• implement alternatives to prosecution (such as a CRPC or a judicial public interest agreement); or
• drop the case (Article 40-1 of the Code of Criminal Procedure).

See 7.4 Discretion for Mitigation.

Following the conclusion of a CJIP on 9 February 2021 between the National Financial Prosecutor’s Office and two companies belonging to a major transport, logistics and communication group, the Investigating Chamber (“Chambre de l’instruction”) of the Paris Court of Appeal confirmed the indictment against one of the companies’ executive for active bribery of a foreign public official. The CJIP concerned acts of bribery of foreign officials and complicity in the misuse of corporate assets between 2009 and 2011 in relation to communications consulting services provided by a subsidiary of the group to Togolese presidential candidates in exchange for container terminal concessions in the port of Lomé. The parent company committed to:

• pay a public interest fine of EUR12 million; and
• submit, for two years, to audits that will be carried out by the AFA on the existence and relevance of the company’s anti-corruption programme (with the stipulation that the costs incurred will be borne by the company up to a maximum of EUR4 million).

The CJIP was validated by the homologating judge of the Paris High Court during a public hearing (Validation Order of the Paris High Court, 26 February 2021, No 28/2021).

Three company’s executives appeared at the same public hearing for the homologation of their CRPCs, as individuals are excluded from the legal scope of the CJIP procedure. They admitted their guilt, acknowledged criminal qualifications and agreed to pay the maximum incurred fine of EUR375,000.

However, unlike the CJIP, the judge refused to homologate the CRPCs, finding that the alleged offences “seriously undermined public economic order” and “undermined Togo’s sovereignty” (Paris High Court, 26 February 2021).

This case illustrates the difficulty of co-ordinating negotiated justice procedures in France and how to ensure the respect for the presumption of innocence and the right to a fair trial even though a CJIP and its validation order have been published. Following this decision, the National Financial Prosecutor’s Office decided to refer the case to an investigating judge.

The Investigating Chamber of the Paris Court of Appeal was therefore called upon to rule on the legality of the judicial investigation. One of the main issues was the fact that parties cannot mention the failed CRPC nor the content of the negotiation during the subsequent trial. As requested by the Public Prosecutor, the Paris Court of Appeal upheld the indictment of the defendant. Only the documents relating to the CRPC procedure were cancelled by the Court (Paris Court of Appeal, 21 March 2023).

On 10 May 2023, the Paris Court of Appeal upheld the conviction of a former director of the Fresnes prison, who was prosecuted for passive bribery, but reduced his sentence. Former inmates of this prison were accused of having obtained, in exchange for money, services to improve their ordinary prison life – for example, no searches, daily showers, freedom of movement, and benevolence in the event of disciplinary problems. The director admitted that he had accepted EUR5,000 offered by one of the defendants in exchange for information on his case. He was sentenced to five years of imprisonment (with two years suspended) whereas the Créteil High Court had sentenced him to four years of imprisonment. One of the defendants, who had been sentenced by the Créteil High Court to two years of imprisonment, was acquitted (Paris Court of Appeal, 10 May 2023).

On 17 May 2023, a former French President, his lawyer, and a former magistrate were found guilty by the Paris Court of Appeal of corrupting judicial personnel and influence peddling. In this case, the investigations focused on the conclusion of a corruption pact: the National Financial Prosecutor alleged that the magistrate provided information on a pending procedure before the Criminal Chamber of the Court of Cassation in exchange for a position at the Council of State in Monaco. The Court upheld a former President’s conviction on bribery of judicial personnel and influence peddling charges. He was sentenced to three years of imprisonment (with two years suspended). Additionally, the Court imposed a three-year ban on civil rights, rendering him ineligible. His lawyer announced that he would appeal this decision to the Court of Cassation (Paris Court of Appeal, 17 May 2023).

As regards non-trial resolutions, a CJIP was reached on 15 May 2023 between the National Financial Prosecutor’s Office and two companies belonging to a French leading construction group. In this case, the Auvergne-Rhône-Alpes Regional Audit Chamber notified the Public Prosecutor’s Office a report on a local Hospital Centre for 2014 and subsequent financial years, as it found several breaches of public procurement rules in the awarding of contracts by the Hospital Centre. The latter awarded two public contracts between 2016 and 2018, for amounts of EUR32 million excluding VAT and EUR3.3 million excluding VAT to one of these companies. During the same period, a plot of land was sold for EUR5.5 million to another group company. The investigations established that the three operations contained irregularities that compromised the equality of candidates and that the hospital director had received invitations from the staff of the companies awarded the contracts between 2015 and 2018. The National Financial Prosecutor’s Office considered that these facts were likely to be qualified as active bribery of a public official and concealment of favouritism.

The two companies agreed to pay a public interest fine of EUR6,811,320 and EUR1,152,680 respectively. Applying its latest guidelines, the National Financial Prosecutor’s Office set out in detail in the CJIP the methods for calculating the amount of the public interest fine, taking into account both aggravating factors (the size of the company and the involvement of a public official) and mitigating factors (the active co-operation of the companies, the unequivocal acknowledgement of the facts and the corrective measures taken) (Validation order of the Paris High Court, 17 May 2023, No 56-2023).

On the same day, the National Financial Prosecutor’s Office also concluded a CJIP with a company owned by a Luxembourg group in charge of collecting, sorting, recycling and recovering waste. Originally, in 2014, the local Public Prosecutor’s Office in Normandy received a complaint from associations concerning the President of the Orne General Council and his Chief of Staff for acts of influence peddling in connection with an authorisation delivered for the installation of a landfill for automobile shredder residues at Nonant-le-Pin.

The investigations carried out established that between 2007 and 2013, the company had sought the assistance and support of the President of the Orne General Council and his Chief of Staff, in order to steer the public authorities’ decisions in its interest. The National Financial Prosecutor’s Office considered that these facts were likely to be qualified as active influence peddling by a legal entity.

The company committed to paying a public interest fine of EUR1,230,000. Applying its latest guidelines, the National Financial Prosecutor’s Office outlined in detail the methods for calculating the fine, considering aggravating factors (the company’s prior legal infractions, including convictions for work-related accidents and fraud on its criminal record), the significant disruption of public order caused by these acts, and the involvement of a high-level public official as well as mitigating factors (such as the active co-operation of the company’s new management, the unequivocal acknowledgment of the facts, and the prior compensation provided to the associations) (Validation order of the Paris High Court, 17 May 2023, No 57-2023).

On 22 June 2023, two companies signed a CJIP with the National Financial Prosecutor’s Office at the end of an investigation opened in 2018 following the discovery of elements identified as open sources by the National Financial Prosecutor’s Office and the spontaneous transmission of information from a foreign authority concerning acts of corruption likely to have been committed in Brazil.

In 2018 and 2019, the group spontaneously provided the National Financial Prosecutor’s Office with documents and analyses relating to the commercial activities of its subsidiaries in Brazil and several African countries.

Given that the acts committed in Brazil had already given rise to the conclusion of agreements, the investigations carried out in France focused on operations in several African countries between 2008 and 2012 and, more specifically, on acts that may have been committed by commercial partners and employees in connection with the conclusion of commercial contracts in Ghana and Equatorial Guinea between 2008 and 2009. The National Financial Public Prosecutor’s Office considered that these acts could be qualified as bribery of a foreign public official.

The companies committed to pay a public interest fine of EUR154,792,000 and EUR54,146,000 respectively. Given the settlement with the American and Brazilian authorities according to which the companies had been subject to procedures aimed at maintaining and improving their compliance programme, the CJIP provided that they were not subject to a compliance programme under the supervision of the AFA. The CJIP was approved on 28 June 2023 by the President of the Paris High Court (Validation order of the Paris High Court, 28 June 2023, No 72-2023).

See 5. Penalties.

Key figures for the year 2022 have been published. In 2022, Transparency International ranked France was ranked 21st in Transparency International’s Corruption Perceptions Index for the public sector, thereby gaining one place since 2021. France was awarded a score of 72 on a scale of 0 to 100 (where 0 is highly corrupt).

According to the 2022 AFA annual report, prosecutors handled 900 proceedings relating to probity offences in 2021 (an increase of 5.5% compared to 2020). Finally, 451 of the prosecuted probity offences resulted in a definitive conviction.

AFA’s Presentation of Foreign Anti-Corruption Standards in Business Life

On 11 May 2023, the AFA published a study comparing France’s anti-corruption framework with that of the US, the UK and the World Bank Group, in order to ensure that the French framework enables companies that comply with it to deploy an effective anti-corruption system that is useful in their international development strategy, thereby limiting the risks of exposure to corruption by meeting the highest levels of international norms and standards. To this end, the AFA has drawn up comparative tables of (i) the legal obligations imposed on companies in terms of preventing and detecting corruption and (ii) the offences of corruption in France, in the US and in the UK. The AFA concluded that, since the implementation of the Sapin II Law, France had established a comprehensive and stringent legal framework. This framework thus enables French companies to prevent and detect corruption and influence peddling in both their domestic and international operations more effectively. To date, even if differences remain, the French anti-corruption framework is made up of procedures that are, for the most part, compliant with the requirements of the foreign frameworks considered in this study.

On 3 May 2023, the European Commission presented its new proposal for a directive on the fight against corruption involving officials of the European Union or officials of EU member states, designed to modernise the existing legal framework.

This proposal was based on the results of an external study completed at the end of 2022 (Strengthening the fight against corruption: assessing the EU legislative and policy framework) assessing the current state of progress of both the legislative and operational aspects of preventing and fighting against corruption in the EU, which showed disparities in the applicable legal regimes.

Article 28 of the proposal therefore provides that the rules laid down in EU Directive 2017/1371 will be brought into line in terms of penalties, aggravating and mitigating circumstances and limitation periods. Member states would also have to ensure the implementation of one or more bodies specialised in the prevention and prosecution of corruption, being independent and having enough qualified staff, financial resources and tools to ensure proper administration of their tasks.

The proposal still remains to be negotiated and adopted by the European Parliament and the Council. Should it come into force, this proposal will amend EU Directive 2017/1371 on fighting fraud and other criminal offences affecting the EU’s financial interests. As the case may be, certain provisions will require an adaptation of the French judicial framework (introduction of a specific aggravating circumstance when acts of bribery are committed by “high-level public officials” or setting of a limitation period of between 8 and 15 years).

On a French level, the 4th annual Rule of Law report (aiming to take the pulse of the rule of law situation in each member state and in the EU as a whole), released on 5 July 2023 by the European Commission, welcomed France’s significant efforts to increase the efficiency of its judicial system and the success of its 2020–2022 national anti-corruption plan. However, it highlighted the lack of progress on the status of Public Prosecutors, regarding their disciplinary system and the rules governing their appointment. The report also discussed the role of the HATVP and pointed out its lack of power to impose administrative sanctions and of financial and human resources to deal with the growing number of lobbyists’ registrations.