The French Anti-Corruption Agency (AFA) has just published the English version of its revised anti-corruption compliance Guidelines. Reflecting three years of experience in implementing France’s landmark Sapin II law, the Guidelines lay out the agency’s recommendations for both the public and private sectors.
With AFA, France offers to the world a distinctive compliance strategy that is at the same time radical and yet self-evidently good. Notice how both the U.S. and UK reward compliance (or punish the absence of compliance). The U.S. offers penalty reductions for pre-existing and remedial compliance. The UK goes one step further, creating a statutory defense for “adequate procedures:” reasonably good pre-existing compliance measures.
But neither country legally requires anti-bribery compliance. Put another way, under the U.S. and UK systems, failure to adopt an anti-bribery compliance program is not, in and of itself, illegal. I find that many misunderstand this. A company cannot be punished for failure to implement an anti-bribery compliance program.
In the U.S. and UK, a company of angels would have no reason to adopt compliance. If you’re sure your employees will never pay a bribe, there’s no reason to invest in compliance. Lovely idea . . . if there were such a thing as a company of angels.
But there isn’t. And yet, in the U.S. and UK, unless and until a credible bribery allegation arises within a company and the enforcement authorities investigate that company, the government will not ask whether the company has a compliance program in place. Compliance evaluations are essentially reactive. It’s a “wait and see” approach.
Both systems have done great things. They’ve moved the anti-corruption ball forward in a serious, historic way. But the UK looked at the U.S. experience and innovated based on what it saw. France has done the same.
France essentially comes along and says, “wait a minute. Why don’t we just require companies above a certain size to adopt compliance programs? Wouldn’t that be a cleaner way to incentivize compliance and deter bribery?”
Duh. A notion both radical and obvious.
Unless you’re a company of angels.
And so, in France, a company may be penalized for failure to adopt compliance, even in the absence of bribery suspicions. AFA consists of dedicated compliance experts who promulgate guidance and help companies implement it. AFA doesn’t do bribery enforcement – if they find evidence, they refer the case to the criminal prosecutor. Their exclusive job is to help companies design and adopt compliance.
I suspect that time will vindicate France’s approach. I hope other countries take note and follow France’s lead. France can now lay claim to the new best idea.