OECD to France: When will enforcement start?

Last month, the OECD’s working group on bribery published its assessment of France’s response to its highly critical phase 3 monitoring report. It doesn’t make pretty reading for the hosting country.

It highlights “the authorities’ lack of initiative in cases involving French enterprises and proven or presumed instances of foreign bribery” and puts into context recent and severe international enforcement actions against French companies.

The assessment follows up on the OECD’s October formal declaration that France was not sufficiently in compliance with the OECD Convention and its request for expeditious implementation.

The OECD phase 3 report on France and the follow up are here.

A number of positive achievements were noted in the OECD working group’s follow up: such as the commencement of 24 investigations, the stiffening of financial penalties, the abolition of Ministry of Justice’s instructions to prosecutors, the establishment of a national financial prosecutor tasked with pursuing foreign bribery cases, the ability of anti-corruption organizations to file civil anti-bribery claims and the ability of foreign victims to bring claims for acts committed within France. However, the positives were far outweighed by a seemingly contumelious failure to address the working group’s phase 3 recommendations.

A selection but by no means all:

• A failure to convict a legal person for a foreign bribery offense since 2012, only three convictions of individuals with fines of less that €20,000, and a tripling of acquittals most involving legal persons.

• No legislative action to clarify or remove the “dual criminality” requirement for foreign bribery enforcement; the case law requirement for “a corruption pact” and the meaning of a foreign public official.

• A failure to entrench prosecutorial independence.

• The failure to make good on an assurance to remove the necessity of either a victim report or an official accusation from a foreign country before the instigation of foreign bribery proceedings.

• A failure to criminalize trading in influence in relation to foreign officials (the proposed reform was thrown out by the French Parliament).

• The failure to ensure that “defense or national secrecy” does not prevent bringing foreign bribery cases or that national economic interests do not influence the decisions to grant of mutual legal assistance.

• The failure to extend the three-year statute of limitations in foreign bribery prosecutions which runs either from either the committal or discovery of an offense.

Finally, in a rather telling response to the working group’s criticism that few awareness-raising actions have been taken by the Ministries of Economic or Foreign Affairs to heighten awareness of foreign bribery, the French authorities pointed out that (in addition to a new one-hour training module for diplomats):

“[A] diplomatic telegram is sent each year to all diplomatic and consular stations, reminding them of France’s obligations to combat bribery and corruption and make them aware of the foreign bribery issue.” That should just about do it then…

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Alistair Craig, a commercial barrister practicing in London, is a frequent contributor to the FCPA Blog.