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

• 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;
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 2021-1729 of 22 December 2021 for confidence in the judicial institution regulated the time limits for preliminary investigations, which are now limited to two years for ordinary cases. A one-year extension can be authorised by the Public Prosecutor. Nonetheless, these time limits may be suspended, especially in the event of a request for international judicial assistance.

Under the same law, in the event of a police search of a law firm, legal privilege is not enforceable against investigative measures concerning tax fraud, influence-peddling, corruption and laundering if the documents shared by the lawyer or their client were used for the purpose of committing (or facilitating the commission of) the aforementioned offences.

On 26 June 2019, the AFA and the National Financial Prosecutor’s Office released the first joint guidelines on the application of CJIPs, with the aim of encouraging legal entities to adopt such a co-operative approach towards the French authorities.

In its first decision (rendered on 4 July 2019), the Enforcement Committee of the AFA confirmed that AFA recommendations are not legally binding ‒ even though public institutions and companies are encouraged to follow them.

On 12 January 2021, the AFA published new recommendations, which are based on three inseparable pillars:

• the commitment of the management body to preventing corruption;
• the use of risk-mapping to acknowledge the risks of corruption to which the company is exposed through a risk map; and
• the internal management of such risks through the measures implemented by the Sapin II Law.

On 7 March 2022, the AFA and the National Financial Prosecutor’s Office jointly released a practical guide to anti-corruption internal investigations, which aims to contribute to:

• the effectiveness of an internal alert within companies and institutions; and
• the quality of their compliance programmes as a whole.

In April 2022, the AFA published a guide that addressed anti-corruption accounting controls, which should be established by deepening or complementing existing accounting controls in order to target risk scenarios highlighted in the risk map.

In July 2022, ahead of France hosting the 2023 Rugby World Cup and the 2024 Olympic Games, the AFA and the Ministry for Sports released two joint guides aimed at helping sports federations and the Ministry of Sport to prevent and detect probity offences during the organisation of competitions or the conduct of public policies promoting sport.

The AFA released a guide entitled Public Officials: The Risks Of Breaches Of Probity Concerning Gifts And Invitations on 15 September 2022 to help public officials identify the risk scenarios to which they may be exposed when accepting hospitality and define a set of appropriate rules to protect themselves against such.

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, Cécile Soriano and Savid 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 advocates 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.

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 bribe. 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; and
• 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 in order to determine whether a bribe took place (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:

• unlawfully offering advantages directly or indirectly to a public official, judicial official or private individual for the benefit of that person (or a third party) in order to induce them to perform or refrain from performing ‒ or because they have performed or refrained from performing – any act pertaining to their position, duties, mandate or activities (or facilitated thereby); or
• accepting the proposal of a person who unlawfully requests ‒ directly or indirectly at any time ‒ 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 in order 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.

Bribery is also punishable when it only involves private parties.

The scope of French anti-bribery law encompasses all managers, employees, volunteers and learned professionals, regardless of the entity to which those persons are attached (be it an individual, legal entity, or grouping without legal personality).

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 in order 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 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 (HATVP)’s proposal, the definition of the offence of unlawful taking of interests was modified by Law No 2021-1729, as follows: “The act, by a person in charge of public authority or entrusted with a public service mission or by a person invested with a public elective mandate, of taking, receiving or keeping, directly or indirectly, an interest likely to compromise their impartiality, independence or objectivity in a company or in a transaction for which they have, at the time of the act, in whole or in part, the responsibility of ensuring the supervision, administration, liquidation or payment.”

Therefore, in order to warrant prosecution, the interest in question must be “likely to compromise their impartiality, independence or objectivity”, whereas the previous law referred to “any interest”  (Article 432-12 of the Penal Code).

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 (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 French 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; Paris Court of Appeal, 15 May 2020, No 18/03310).

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 also being 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, Anticor 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 French 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). This new interpretation, in line with ECJ case law, is applicable to:

• mergers concluded as of 25 November 2020; or
• mergers concluded at any date if their objective was expressly to avoid the absorbed company’s criminal liability (French Court of Cassation, 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.

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 (French Court of Cassation, 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 Public Prosecutor’s Office then appealed to the Court of Cassation, which stated that the prosecuting authorities are unable to submit a new request for approval following the first refusal to approve a CRPC and must refer the case to an investigating judge or directly to a court.

Settlement

According to the circular issued by the French Department of Justice on 2 June 2020, the opportunity to enter into a CJIP depends on the following factors:

• the legal entity’s lack of criminal record;
• the voluntary disclosure of the facts by the legal entity; 
• the degree of co-operation with the judicial authority demonstrated by the managers of the legal entity (particularly with regard to enabling the identification of the persons involved in the act of corruption in question).

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;
• 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, 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 §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

The amount of the public interest fine may be increased in the event of bribery of public officials or when the company has:

• already been convicted of bribery;
• used its resources to conceal acts of corruption; or
• committed repeated and systematic acts of bribery.

However, the amount of the public interest fine may be reduced if the company has:

• spontaneously disclosed acts of corruption before the opening of an investigation and within a reasonable time;
• co-operated extensively with the Public Prosecutor;
• carried out internal investigations; or
• implemented corrective measures.

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 sets out the legal regime applicable to lobbying activities in France. The objectives were to identify individuals and companies which should be considered as lobbyists and to provide a framework for their intervention by imposing ethical obligations and sanctions on them.

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, employees or members carry 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. a main activity – ie, more than half of an individual’s time over six months; or
2. a regular activity – ie, at least ten communications over the last 12 months.

• 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 at the HATVP’s initiative 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 and 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 2020, the AFA notified three cases involving acts of bribery, embezzlement of public funds, favouritism or unlawful taking of interests to the National Financial Prosecutor’s Office and the Prosecutor’s Office in Bordeaux and Basse-Terre after they were revealed during controls.

Per 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 reason to suspect – either:

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

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. It corrected some of the limitations of the protection system introduced by the Sapin II Law that were highlighted in a report of July 2021 (see 8.1 Assessment of the Applicable Enforced Legislation).

Broadening the Definition of a Whistle-Blower

Firstly, this law modified the definition provided for in the Sapin II Law, as follows:

“An individual who reveals or discloses, without direct financial compensation and in good faith, information relating to:

• a crime or misdemeanour;
• a threat or harm to the general interest;
• a breach or an attempt to conceal a breach of:
1. an international commitment properly ratified or approved by France;
2. a unilateral act issued by an international organisation on this basis; or
3. EU law or a national law or regulation”.

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).

The report would only be directly made public if:

• no appropriate action has been taken within:
1. three months of making an external alert (regardless of whether it was preceded by an internal alert); or
2. six months of reporting the alert to the judicial authority or to a European or national institution);
• there is an imminent and serious danger;
• referring the matter to one of the competent authorities would put the whistle-blower at risk of reprisals or would not allow the subject of the disclosure to be effectively remedied, owing to the particular circumstances of the case – in particular, if evidence may be concealed or destroyed or if the whistle-blower has serious grounds for believing that the authority may have a conflict of interest or be in collusion with the reporter of the facts or implicated in those facts (Article 8, III 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).

The non-liability of whistle-blowers due to their report was also extended. They cannot be held liable for any damage caused by their good faith report. Nor can they be held criminally liable for intercepting or removing confidential documents that contain information to which they had lawful access (Article 10-1 of the Sapin II Law).

The maximum fine that may be imposed on plaintiffs for abusive or dilatory complaints was increased from EUR30,000 to EUR60,000 (Article 13 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 channel permits the transmission of any element – whatever its form or medium – that is likely to support the alert.

The procedure provides that the author of the alert must be informed in writing of the receipt of the alert within seven working days.

The entity shall also inform the author of the alert in writing of the measures envisaged or taken to assess the accuracy of the allegations and, where appropriate, to remedy the subject matter of the alert, as well as the reasons for such measures. The author of the alert must be informed of these measures within a reasonable period of time – ie, not more than three months after the acknowledgement of receipt of the alert or, in the absence of such acknowledgement, within three months of the expiry of a period of seven working days following the alert.

The author of the alert will be informed in writing of the closure of the file.

The channel must guarantee the impartial handling of the report and ensure the confidentiality of the information collected, particularly with regard to the whistle-blower’s identity. In this respect, Article 9 of the Sapin II Law seeks to guarantee the strict anonymity of the whistle-blower and the information provided throughout the reporting process. The unlawful disclosure of such information is punishable by two years’ imprisonment and a EUR30,000 fine.

Decree No 2022-1284 also provides for a list of the public authorities that shall establish such a procedure, depending on the field concerned. Each authority shall review its procedure at least every three years, taking into account its experience and that of other competent authorities.

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.

In French criminal law, the powers to prosecute and convict perpetrators of acts of corruption belong to judicial authorities and are not granted to administrative bodies.

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 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 addition, it monitors the proper implementation of the new ancillary penalty that can be imposed by judges on legal entities under Article 131-39-2 of the Penal Code (ie, setting up a compliance programme).

For the execution of their tasks, AFA agents are entitled to request the communication of any professional document (in any format) or any information held by the entity controlled. They can verify on the spot the accuracy of the provided information and interview any person who might be helpful. Any obstruction may be punished by a fine of EUR30,000 (Article 4 of the Sapin II Law).

In 2021, the AFA carried out 34 new controls, comprising six “enforcement controls” ‒ including one “compliance programme” control during the execution of a CJIP signed on 9 February 2021 between a French major multinational transport and logistics company and the National Financial Prosecutor’s Office ‒ and 28 “own-initiative” controls.

Born from the observation of an unmet need for co-operation with anti-corruption authorities at the operational level, the AFA ‒ together with the Italian National Anti-corruption Authority (ANAC) and the Serbian Anti-corruption Agency ‒ launched an international network of corruption-prevention authorities known as the NCPA Network. Their initiative aims to provide an international operational platform for the exchange of technical information and the sharing of good practices. In December 2021, the ANAC released a study entitled Using Innovative Tools and Technologies to Prevent and Detect Corruption, which contains contributions from NCPA members and brings together practical examples of best practice in the use of information and communication technologies for the prevention of corruption.

Following the European Colloquium on Ethics and Transparency, which was organised in Paris on 9 June 2022 by the HATVP in the context of the French Presidency of the Council of the European Union, 11 public ethics authorities from EU member states adopted a joint declaration and created the European Public Ethics Network. Its members intend to adopt a founding charter in the coming months and plan to meet in autumn 2022 to discuss the issue of mobility between the public and private sectors.

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).

Pursuant to Decree No 2017-329 of 14 March 2017, AFA-empowered agents 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.

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.

In a decision handed down on 1 March 2021 by the 32nd Chamber of the Paris High Court, a former French President, his lawyer and a former magistrate were convicted of bribery of judicial staff and influence-peddling. In this case, investigations focused on the conclusion of a bribery pact: it was alleged by the Financial National Prosecutor that the magistrate had given information on a procedure pending before the Criminal Chamber of the Court of Cassation in exchange for a position at the Monaco Council of State.

The court found evidence of a bribery pact in the “body of serious, precise and concordant indicators resulting from the very close ties of friendship between the protagonists, business relations reinforcing these ties, common interests tending towards the same goal ‒ namely, the obtaining of a decision favourable to the interests of the former French President ‒ and telephone taps demonstrating the acts carried out and the compensation offered”.

The three defendants were sentenced to three years’ imprisonment (two of which were suspended). The former French President and his lawyer appealed this decision (Paris High Court, 1 May 2021, No 14056000872).

In a decision handed down on 21 January 2022 by the 32nd Chamber of the Paris High Court, four individuals belonging to the same former French President’s inner circle were convicted of favouritism, misappropriation of public funds, complicity and concealment of these offences. This judgment followed an investigation into the alleged irregularity of public contracts agreed between the Presidency of the French Republic and several polling firms in violation of the rules of the Public Procurement Code. Although four out of six defendants were convicted in this case, the former French President was never involved as he remained covered by presidential immunity as guaranteed in the French Constitution. However, he was summoned to appear as a witness during a hearing, where he refused to answer questions of the Paris High Court’s President.

On 7 September 2022, the President of the French Rugby Federation was charged before the 32nd Chamber of the Paris High Court with the offences of passive bribery and influence-peddling. He was accused of using his influence to ensure the awarding of a jersey sponsor contract for the French national team to his co-defendant (the owner of Montpellier Hérault Rugby Club) and obtain a reduction in the sanctions initially imposed by the National Rugby League Disciplinary Committee against Montpellier in exchange for, notably, an image contract between his company and that of his co-defendant.

The Public Prosecutor requested that both defendants be punished by a three-year term of imprisonment (including one non-suspended year) and fines amounting to EUR50,000 and EUR200,000 against the French Rugby Federation President and his co-defendant respectively. On 13 December 2022, the Paris High Court sentenced the President of the French Rugby Federation (who announced that he would appeal the decision) to two years’ suspended imprisonment and his co-defendant to eighteen months’ suspended imprisonment.

On 8 November 2022, three former inmates of the Fresnes prison went on trial before the Créteil High Court for bribery of a public official (the former prison director, who was prosecuted for passive bribery). They 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 to accepting EUR5,000 offered by one of the defendants in exchange for information on his case and a guarantee that everything would be fine were he to be re-incarcerated. The Public Prosecutor requested that a penalty of four years’ imprisonment be imposed upon the public official. The judgment will be rendered on 11 January 2023. On 2 December 2022, the Marseille High Court sentenced one former director of the Bouches-du-Rhône departmental council (between 2008 and 2016) to five years’ imprisonment, after he was found guilty of bribery, favouritism and criminal association. The proceedings established that he had traded privileged information and confidential documents in the context of the award of public contracts.

In a case where the court of appeal had invalidated the prosecution of individuals for bribery on the grounds that the reasonable time limit had not been respected and the right to a fair trial, the adversarial principle, and the balance of the rights of the parties had all been infringed, the Court of Cassation ‒ in its most solemn session – ruled on 9 November 2022 that the excessive length of a procedure cannot lead to its invalidation when every other aspect of the procedure is regular. However, courts must take into account the effects of the time that has elapsed on the merits of the case (French Court of Cassation, 9 November 2022, No 21-85.655).

As regards non-trial resolutions, a judicial public interest agreement was reached on 9 February 2021 between the National Financial Prosecutor’s Office and two companies belonging to a major transport, logistics and communication group. 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, 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. Although Article 495-14 of the French Code of Criminal Procedure provides that parties cannot mention the failed CRPC nor the content of the negotiation during the subsequent trial, defendants who already admitted their guilt during the CRPC procedure are in practice deprived of their right to defend their case in court, especially when the hearing was highly mediated. The lack of an effective appeal against the refusal to homologate the CRPC reinforces this self-incrimination risk.

On 7 July 2022, the President of the Paris Court validated two judicial public interest agreements reached between the National Financial Prosecutor’s Office and two French companies with regard to the offence of bribery of foreign officials. The CJIP of 9 June 2022 followed a preliminary investigation into executives of a French engineering conglomerate who were charged with bribing public officials in order to obtain contracts with a major Angolan state-owned company operating in the oil industry. The company committed to pay a public interest fine of EUR3.5 million.

The CJIP of 20 June 2022 followed a preliminary investigation into alleged bribes estimated at EUR6 million that would have been paid by the company at the request of its local subcontractor in order to corrupt a government official within the framework of a project designed to establish a new national identification system in Bangladesh. The company agreed to pay a public interest fine of nearly EUR8 million.

See 5. Penalties.

Key figures for the year 2021 have been published. In 2021, Transparency International ranked France was ranked 22nd in Transparency International’s Corruption Perceptions Index for the public sector, thereby gaining one place since 2020. France was awarded a score of 71 on a scale of 0 to 100 (where 0 is highly corrupt).

According to the 2021 AFA annual report, prosecutors handled 834 proceedings relating to probity offences in 2020. Finally, 359 of the prosecuted probity offences resulted in a definitive conviction.

Assessment of the Sapin II Law

On 7 July 2021, an information report by two Members of Parliament was released, aiming to evaluate the Sapin II Law.

The first part was devoted to the prevention and detection of corruption as a whole and especially to the AFA’s action. The report found that private players had adopted the obligations issued by the Sapin II Law whereas dissemination of the system remained very limited in the public sector. Besides, the report noted that the results of the extraterritorial application of these new tools – and, in particular, the prosecution of acts of corruption of foreign public officials by foreign companies carrying out part of their activity in France ‒ were non-existent. They therefore suggested that the obligations of Article 17 should be imposed on subsidiaries of foreign groups established in France.

The second part concerned the CJIP procedure. In this respect, the authors of the report were not in favour of applying the CJIP procedure to individuals because, in their view, such an extension would make it possible to exempt the perpetrators of acts of corruption – thus placing acts of corruption into a separate category of offences even though they are particularly serious.

The third part was devoted to the protection of whistle-blowers. To the authors of the report, the status of whistle-blowers seemed insufficiently protective and could be consolidated by transposing the Directive (EU) 2019/1937 of 23 October 2019. In particular, they noted that:

• the criteria of disinterestedness and good faith excluded many whistle-blowers from the protection provided by the law; and
• the hierarchy of reporting channels often exposed whistle-blowers to reprisals.

The French legislator has taken these findings into account by the enactment of Law No 2022-401 aimed at improving the protection of whistle-blowers on 21 March 2022.

The fourth part concerned the register of interest representatives (lobbyists) implemented by Decree No 2017-867 of 9 May 2017.

On 9 December 2021, the OECD Working Group on Bribery published its France Phase 4 report, according to which: “France has undertaken major legislative and institutional reforms since Phase 3 in 2012 and made significant progress in enforcing the foreign bribery offence. However, these recent advances are being jeopardised by structural resource issues affecting the entire criminal justice system. Furthermore, two recent bills – one of which will impose a three-year limit on preliminary investigations into economic and financial crimes [the above-mentioned Law No 2021-1729 of 22 December 2021], including foreign bribery – raise concerns about France’s ability to make further progress.”

The OECD Working Group on Bribery welcomed the significant increase in the number of investigations opened. Between late 2012 and September 2021, 108 investigations were opened (in comparison with only 33 between 2000 and late 2012).

However, the OECD emphasised the relatively low number of cases resolved in light of the country’s economic situation and trade profile, as well as the number of foreign bribery allegations reported in the media. Therefore, it made the following recommendations to:

• take the necessary legislative measures to extend the duration of preliminary investigations in foreign bribery cases and thereby enable the effective enforcement of the foreign bribery offence;
• preserve the role and expertise of the National Financial Prosecutor’s Office in the investigation, prosecution and resolution of foreign bribery cases;
• ensure that sufficient resources for fighting white-collar crime are allocated to the relevant parts of the criminal justice system;
• clarify the conditions for triggering corporate liability and continue efforts to develop effective and co-ordinated non-trial resolutions for natural and legal persons; and
• maintain the role, mandates and resources currently assigned to the AFA in the development and monitoring of compliance measures by companies.

In December 2022, France is expected to submit an oral report on its implementation of essential measures to maintain the progress made since Phase 3 to the OECD Working Group on Bribery. In addition, a written report on the implementation of all recommendations and enforcement efforts in France will be submitted in December 2023. The follow-up reports will be publicly available.