From compliance to commitment

By Sara Brimbeuf and Laurence Fabre, Transparency International France

This blog is part of Exporting Corruption 2020.

On December 9, 2016, France adopted a law compelling, for the very first time, the largest French companies to set up a corruption prevention plan. This law also created an Anti-Corruption Agency ("AFA") and, drawing from Anglo-Saxon procedures, established transactional justice for breaches of probity by creating the Judicial Convention of Public Interest (“CJIP”).

This so-called "Sapin II law" made an unprecedented step in the protection of whistleblowers by recognizing their legal status and organizing their protection against possible retaliation measures.

In 2014, two years before the adoption of the Sapin II law, the OECD Working Group on Bribery called on France to persevere in the prosecution of the offence of bribery of foreign public officials, reminding its concerns regarding the lack of proactivity of the authorities in cases which involve French companies for proven or alleged acts of corruption committed abroad. This warning undoubtedly led French authorities to reform their anti-corruption legal framework and adopt the Sapin 2 law.

This month, on the eve of the Sapin II’s fourth anniversary, it is indisputable that the repression of corruption in France has made significant progress. That progress can also be seen in the latest Exporting Corruption report, published on 13 October 2020, which shows France as one of the few countries that improved its enforcement against foreign bribery over the last four years.

Thanks to the Sapin II legislation, not only have more than 10 CJIPs been concluded, including three for bribery of foreign public officials, but, more importantly, this new legal framework gave an impetus to international cooperation between the French enforcement authorities and their foreign counterparts with a view to coordinate repression of foreign bribery.

The best illustration of this was the recent Airbus case described by the US authorities as the "largest global foreign bribery resolution to date". Lastly, but above all, the amount of penalties imposed is unrivalled compared to those imposed until then, with particularly short prosecution times.

However, if we look beyond the regulatory constraint to assess the progress made in terms of the commitment of the actors, it must be noted that no company has denounced the acts of corruption that could affect it, just as no whistleblower felt sufficiently protected to be at the root of the major corruption scandals of recent years in France.

This should raise questions about the weaknesses of our systems that failed to foster a sufficient impetus to impose a genuine culture of integrity. The AFA shares the same observation when stressing in its latest annual report that the anti-corruption commitment at the highest level of the top management of the major economic players was still lacking.

Going beyond the logic of compliance to move towards a real commitment of actors to a business ethic, these are the issues that our future regulatory systems must promote.