On June 2, the French ministry of Justice released a new order addressed to French prosecutors on the criminal policy relating to international corruption and how such cases should be handled.
In this order, which constitutes mere guidance, the French ministry of Justice enumerates how prosecutors may obtain evidence of acts of corruption perpetrated by corporations and notably encourages on the voluntary self-reporting by corporations.
In this respect, the order specifies that although executive officers have no legal obligation to self-report acts of corruption, it may nonetheless be in the corporation’s interests to do so if it hopes to be treated with some leniency when the National Financial Prosecution Office (“PNF”) is considering the mode of prosecution. In this regard, according to the order, the PNF will be able to enter into a dialogue with trade organizations and unions representing corporations’ interests carrying out business abroad, in order to define and implement a framework and practical incentives for self-reporting.
The order also states that the opportunity to enter into a CJIP (aka “a French DPA”) will depend on several factors, including, the voluntary self-reporting of the conduct and the degree of cooperation by the corporation’s executive officers with the judicial authorities (notably to identify the individuals involved in the corruptive scheme).
In doing so, this order is in line with the guidelines released last year by the PNF and the French Anti-corruption Agency (“AFA”) in which both authorities state that corporate-led internal investigations were becoming essential to be considered for a CJIP.
However, a corporation that decides to self-report corrupt conduct remains exposed to a risk of prosecution because the self-reporting does not guarantee any particular outcome or leniency from the prosecution office. Therefore, corporations will have to carefully assess the situation before self-reporting.
The order also expressly refers to the general policy of the US Department of Justice (“DOJ”), the so-called “Yates” memo in which the DOJ states that “in order for a company to receive any consideration for cooperation [credit] the company must completely disclose to the [DOJ] all relevant facts about individual misconduct.”
This reference to the DOJ policy by the French Ministry of Justice is not isolated and may demonstrate a tendency towards the global homogenization of the fight against corruption.
This tendency is also reflected in the updated guidelines issued by the DOJ in June 2020, on the evaluation of corporate compliance programs. These guidelines require prosecutors to gain an understanding of why the company has chosen to set up the compliance program in a particular way, and why and how the company’s compliance program has evolved over time. This echoes the AFA’s recommendations according to which corporations must frequently update both their corruption risk-mapping document and their anti-corruption compliance program.
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