In July, a new law against corruption was announced to be submitted to the French ministers council in the fall, to debate it at the Parliament in early 2016. Winter is coming; still nothing.
The French Ministry of Finance, in charge of the draft, has been working on it for months and consulted with the various relevant actors. The goal was to fine tune it and avoid what happened earlier this year. The law submitted by the French Ministry of Economics to enhance economical growth was stripped out of its main features during the debate at the Parliament.
Michel Sapin, the French Minister of Finance, cares about it. Already in 1993, while in another government, he achieved that his first law against corruption be enacted. This new draft law would supplement the existing legislative arsenal that he helped create and put an end to the bad reputation of France in terms of fight against international corruption. The passive attitude of France toward transnational corruption has regularly been pointed out by international organizations against corruption, and in particular the OECD.
Such lack of action has led the American justice to heavily sanction French companies to compensate it. French companies paid among the biggest FCPA fines (Technip, Alcatel, Total and Alstom paid $1.65 billion in aggregate).
We hear in Parisian business circles that this new law could be a chance for French companies to no longer be subject to the harsh justice of the Americans. We even hear that the new agency to be set up to oversee how corruption is being prevented in French companies should also have the mission to promote the interests of French industry abroad. The premier role of this new law must not be forgotten. It is not to improve the image of France or to protect French companies, but to prevent acts of transnational corruption, which have disastrous consequences.
Corruption slows down economic and sustainable growth, and is an obstacle to good governance and the rule of law. In Costa Rica, the Alcatel case put down two former presidents. In Brazil, the political class and the president are shaking due to the Petrobras case. Besides, corruption fosters criminal and/or terrorist activities in certain vulnerable countries. Therefore, it is essential that this new law against corruption be convincing.
The draft law is promising however, and we catch here and there rumors about its content; that the Foreign Corrupt Practices Act and the UK Bribery Act influenced it. A monitoring “à la française” would be introduced. A dedicated agency would be set up. No possibility to settle with a deferred prosecution agreement though, in spite of the recommendations made by the business world and NGOs against corruption.
Putting in place an anti-corruption compliance program would also become mandatory. Failing to do it could lead to prison, which would be new in the world of preventing corruption and a strong argument in favor of compliance departments to obtain necessary budget to set up robust compliance programs.
In any event, the most stringent law will only be efficient against corruption if breaching it is properly sanctioned. Consequently, it will be important to look at the resources that will be provided to the prosecutor in charge of transnational corruption and to this newly created-to-be agency.
The French version of this editorial was published in the December 2015 issue of Revue Lamy de Droit des Affaires (RLDA).
_______
Nicolas Tollet is a lawyer admitted to the Bar in Paris and New York. He formerly practiced at Willkie Farr & Gallagher LLP, concentrating mergers and acquisitions and anti-corruption compliance. In 2012, he joined the Technip Group. Under the Chief Compliance Officer, he develops and implements the anti-corruption compliance program, sharing his time between Paris and Rio de Janeiro. In 2014, he founded the European Compliance Network to promote networking among European compliance professionals. He graduated from the University of Aix-en-Provence and the University of California Berkeley. He’s a member of Transparency International and of Cercle France-Amérique.
1 Comment
One worrisome aspect of this is the simplistic idea that if voluntary compliance programs are a good idea, then making them mandatory is even better. Unfortunately, this is a case of government logic detached from reality. I have written about this in a column in SCCE’s Compliance and Ethics Professional Magazine, http://compliancestrategists.com/csblog/2014/07/08/mandatory-compliance-programs-good-idea/ , “Mandatory compliance programs – a good idea?” One of the core problems with mandatory programs is that this approach changes the entire dynamic of the program. Instead of having compliance professionals trying to improve and maximize the program, you have lawyers emphasizing what is the minimum needed to avoid breaking the law. Form – dotting the “I”s and crossing the “T”s – becomes the objective. Yes, it seems like an easy solution, but setting a legally mandated minimum can quickly become the practical maximum. There is a reason other governments have used more of a reward approach. They are not stupid; they are just recognizing human nature.
Comments are closed for this article!