On 4 February 2019, the French anti-corruption Agency ("AFA") released its Guide on the anticorruption compliance function in companies. This is the first out of a series of six guides that the AFA will release soon.
The cross functional nature of the anticorruption compliance function
The chief compliance officer's ("CCO") main duty is the deployment and implementation of the anticorruption compliance program within the company. In this respect, in its Guide, the AFA identifies eleven tasks assigned to the anticorruption compliance function. The AFA Guide also details the role and interactions of the CCO with other functions of the company to implement each of the eight pillars of the anticorruption compliance program imposed by the Sapin II Law.
Beyond these tasks, depending on the needs and structure of the company, the CCO may intervene in other compliance sectors. In this case, according to the AFA, it would be useful to set up a matrix with the roles and responsibilities of all the functions intervening in compliance sectors.
To fulfil his or her missions, the CCO must have access to all useful information and must be involved in the implementation of strategic projects (M&A, joint ventures, new products, etc).
The appointment, the governance and the positioning of the CCO within the company
In its Guide, the AFA recalls that the positioning of the CCO within the company and the resources dedicated to this function demonstrate the commitment of the executive committee to preventing and detecting corruption. Accordingly, the CCO must be clearly identified by all the employees of the company and, therefore, must be formally appointed by the executive committee.
The governance of the anti-corruption compliance function depends on the characteristics of the company. Hence, in some cases, the executive committee will assign the anti-corruption compliance function to the head of another function (e.g., the chief legal officer). Conversely, in other cases, the executive committee will create a dedicated team headed by the CCO.
As to the positioning of the CCO within the company, it is paramount that this positioning notably ensures the independence of the CCO's actions and allows for an easy access to the executive committee. However, the independence of the CCO does not mean that there is no control since his or her actions must be reported periodically to the executive committee and to other committees (risk, audit, etc.).
The implementation of an anticorruption compliance network within the company
The executive committee of the company may decide to implement an anticorruption compliance network. The operational implementation of this network involves appointing or hiring "compliance referents" to help in deploying and implementing the anticorruption compliance program on certain sites, in certain branches and in support of certain business units.
The CCO's liability
Should the AFA consider that the anticorruption compliance program has not been fully implemented within the company, the CCO's liability cannot be triggered. Indeed, the executive committee of the company remains ultimately responsible for implementing the anticorruption compliance program. In addition, from a criminal law perspective, the mere failure by the CCO to comply with his professional duties cannot amount to the perpetration or to the complicity of the offense of corruption. However, should the CCO fail to comply with his professional duties, he or she would be exposed to disciplinary sanctions.
Please refer to previous publications on the French Anticorruption Agency (AFA):
- The French Anticorruption Agency released its Inspection Charter
- Duty to set up procedures enabling whistleblowing in France by 1st January 2018: Criminal / Labor consequences
- Update on Sapin II law
- The European, Middle Eastern and African Investigations Review 2018 – France chapter
This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.
© 2019 White & Case LLP