Charles Duchaine, pictured left, is a French Magistrate and has been the director of L’Agence française anticorruption (AFA) since it was founded in 2017. He was previously the general director of the French Asset Recovery and Management office. He was awarded the French Legion of Honor in 2014 — the highest French order of merit, both military and civil. Here’s what he thinks about the current state of anti-corruption efforts in France and globally.
In your nearly six years as director of the AFA, how have you seen the corporate compliance landscape in France change?
The developments over the last six years are very clear. Whereas in 2017, compliance programs were absent or simply at an embryonic stage, and companies often experienced their implementation as a constraint, we now see that the most remarkable evolution is, first and foremost, that of mindsets. It is more than an evolution; it is a revolution.
Even if not all companies have reached the same level of maturity in the design and deployment of their program, none of them disputes the need for it anymore. Our most recent audits — even if they sometimes lead to the discovery of failures and, very marginally, of the somewhat recalcitrant attitudes of certain companies — show that the measures and procedures imposed by the law are generally implemented and that they are implemented methodically because they are understood.
The AFA’s educational and training work since 2017, and in particular the publication of its guidelines and different guides, have enabled companies to understand the systemic dimension of the program provided for in Article 17 of the Sapin II Law.
Compliance programs are no longer a pile of disordered measures with no coherence between them but a coordinated whole, a set of measures articulated between them, which stem from a single and same inspiration based on a single foundation: the corruption risk mapping.
What is the most common question companies ask the AFA about anti-corruption compliance?
The AFA’s guidelines have, I believe, answered most of the questions raised by companies by proposing, sometimes by way of illustration, a method for implementing measures and procedures to meet the legal requirements. Some of these measures are nevertheless more difficult to implement, particularly third-party due diligence, for two main reasons:
- The need, beyond new third-parties, to assess the “stock” of partnerships initiated before the company adopted its compliance program.
- The level of granularity to be reasonably selected to conduct this assessment, i.e., the adequacy of the depth of the assessment to the risk that the relationship with the third-party poses to the company.
The last time a French company was sanctioned by the United States for FCPA offenses was in 2018. Since then, has there been more information sharing and cooperation between the American and French governments? How’s the relationship?
It is difficult to have a peremptory and definitive view on the subject because good relations are like good reputations, they take a long time to build, and a single case could be enough to darken them.
I believe, however, that the efforts and progress made by France in recent years in preventing and combating corruption, and notably bribery of foreign public officials in international business transactions, have enabled it to regain a certain credibility. This is at least what the OECD Working Group on Bribery affirms in its Phase 4 evaluation report.
This renewed credibility, based not on mere declarations of intent but on concrete actions to prevent, prosecute, and sanction corruption, particularly through the implementation of Judicial Public Interest Agreements (CJIPs), is likely to reassure our foreign counterparts, American or otherwise.
The simultaneous conclusion in 2018 of a CJIP by the National Financial Prosecutor’s Office (PNF) and a DPA by the DOJ in the Société Générale case marked a turning point in the relationship between France and the United States in this regard. It made it possible to restore a somewhat deteriorated relationship.
Exchanges now exist and are reflected in a more confident and harmonious cooperation.
Are there any worrying trends that the AFA is seeing regarding corruption or bribery in France or globally?
The nature of our mandate hardly allows us to have a sense of, and even less to give an informed opinion on, the evolution of the typology of corruption in France or the world. However, what we can measure is a worrying tendency in France (as elsewhere) to enact rules only to apply them formally. The risk is the development of cosmetic compliance.
While I have long been convinced of the virtues of prevention, an effective anti-corruption system must also focus on prosecution and enforcement.
The risk is the temptation for some to pretend that prevention alone can solve everything.
The development of transactional justice for legal persons is relevant, firstly because legal persons can only ever be sanctioned by a fine or dissolution, and secondly, because they are only the instrument, the vehicle of the offense. The CJIP is, therefore, a judicial response that is highly suitable for sanctioning legal persons. But the development and success of this transactional justice, which makes it possible to reconcile two needs, that of punishing and that of ensuring the economic survival of the company, must not conceal the liability of the natural persons, the true authors of the offense.
In a nutshell, the development of transactional procedures must not lead us into a movement of decriminalizing criminal business law, which certain politicians widely support. Natural persons who commit offenses must be prosecuted and sanctioned, particularly by custodial sentences, where appropriate.
What are the biggest challenges the AFA will face in the next six years?
In France, institutions are like the democratic values they are tasked with protecting and defending: Often fragile, especially when they are young. When their existence is not threatened, they run the risk of being weakened by a lack of resources and swallowed up. We must remain vigilant.
As a government agency under the authority of the Ministers of Justice and Budget, the AFA must continue to assert itself in the performance of the advisory and coordinating role entrusted to it by law. It must do everything possible to permeate public action, to propose directions and strategies, so that anti-corruption does not become an abstract art or an ethereal science that feeds into symposiums without ever finding concrete application, but an actual component of public action. An actual public policy. This is the ambition that we currently hold in the preparation of the next multi-year plan to fight corruption for 2023-2025.
Furthermore, as a regulator, the AFA will have to struggle to preserve its independence and existence, which is sometimes still challenged.
Are you optimistic about the future of anti-corruption efforts in France and globally?
Current events, whether national, European, or international, and the multiplication of cases involving elected representatives — and the surprising behavior of some, to say the least — give cause for concern and lead the informed observer that I am to ask myself serious questions about the future of our democracies.
Without losing our lucidity, we must be optimistic and remain so. Otherwise, the battle is lost. The cause is noble and deserves unwavering commitment. At the domestic level, the fight against corruption is a fight against felony, against the enemies of the rule of law and democracy.
Indeed, at the domestic level, the rules of the game are unique and unequivocal, and all those who violate them should be severely punished and definitively removed from public life, whether they are civil servants, entrusted in one capacity or another with a public service mission, or elected officials.
At the international level, anti-corruption is more complicated because there are areas where these rules of the game are not respected and where cheaters thrive. But if we want to curb bribery of foreign public officials by companies in international business transactions, we must stop looking at things with one eye closed.
We must start by imposing, on the States located in these so-called “risk” areas, the implementation of effective systems to combat passive bribery by their public officials. But is there a will to do so? Some are taking advantage of the disorder and may not be in favor of this development.
This is why it is important that international instruments regulate the issue and why it is sometimes necessary for national jurisdictions to have extraterritorial action. However, this extraterritorial action should not be aimed at defending one’s own or national interests but only at imposing compliance with common rules of the game, which must apply to all equally to guarantee free competition and reward only merit.
If some do not want to respect these rules of the game, they must be removed or banned from playing. This is why it is important to cooperate with those exposed States, to enable them to raise their standards in the prevention and fight against corruption so that the same rules of the game apply everywhere.
Editor’s Note: I would like to thank Director Duchaine for his generosity and everyone I communicated with at the AFA for their support in making this interview possible.