France: Navigating French Internal Investigations And Self-Reporting Post-Sapin II

Last Updated: 19 July 2019
Article by Matthew Cowie, Karen Coppens and Marie Perrault

In the less than two years since its new anti-corruption legislation came into force, France has demonstrated its clear intention to become a key anti-corruption enforcer alongside the U.S. Department of Justice (DOJ) and the U.K. Serious Fraud Office (SFO). Since the enactment of Sapin II, the Parquet National Financier (PNF), the lead French investigating and prosecuting agency, has entered into five French deferred prosecution agreements, called Convention Judiciaire d'Intérêt Public (CJIPs), with companies. The French authorities have levied corporate fines comparable to, or in excess of, mature Western regulators and totalling €554,170,755[1] since November 2017.

The Sapin II reforms have been grafted on to a legal system somewhat resistant to internal investigations carried out by company lawyers into suspected economic crime. As part of their efforts, French authorities are now working hand-in-hand with foreign authorities investigating cases of global significance. We anticipate that the French will continue to develop strong relationships with foreign enforcement authorities and will act in partnership with them in the post-Sapin II environment. But, despite some converging trends with the U.S. and the U.K., France has a unique approach to prosecuting bribery, corruption and other financial crime and these particularities should be taken seriously to avoid common pitfalls when navigating the French enforcement environment.

In this article, we examine the benefits and the difficulties of cooperating with French authorities with a view to obtaining a CJIP. Our article will include a critical analysis of issues faced by foreign advisors when working in a French environment, considerations for self-reporting in France and an examination of how France's new approach to anti-corruption has led to French prosecutors working with other enforcement agencies in multijurisdictional cases.

Investigating With an Eye Toward a CJIP

French involvement in international anticorruption enforcement has shifted how French authorities are approaching corruption investigations.

Under Sapin II, CJIPs are available for specific offences of corruption, influence peddling and laundering of the proceeds of tax fraud or related or "connected" offences. CJIPs must be "validated" by a judge during a public hearing. If the judge approves the CJIP, the validation order does not amount to an admission of guilt and does not have the effect of a conviction.

To date, the level of scrutiny exercised by the French judges during the validation hearings appears reasonable and similar to the U.S. approach – DPAs are negotiated by prosecutors with little judicial involvement and the court approves the terms of the DPA without significant amendments before the terms are made public. The PNF has moved quickly and finalised CJIPs with a number of high-profile French and multinational firms. This nimble approach is speedy and is considerably more streamlined than the approach in the U.K., where a judge has to independently assess the appropriateness of the DPA and ensure that its terms are fair, reasonable and proportionate.

The PNF has entered into five CJIPs with companies since November 2017 and all five have followed company internal investigations led by outside lawyers. Having seen how credibly and speedily complex lawyer-led cases can be resolved, we predict that the French authorities will be more inclined to promote company cooperation and self-reporting in the years to come.

Traditionally, French companies have taken a passive approach to criminal defense. However, given that French authorities seem to be increasingly willing to rely on lawyer-led internal investigations when negotiating with companies, that approach may no longer serve a company's interests. Nonetheless, advisors must take into account particulars of French law which could render U.S.-centric or "model" investigation approaches inappropriate in France, particularly if the company hopes to cooperate with French authorities later on.

Read 'Navigating French Internal Investigations and Self-Reporting Post-Sapin II'.

Originally published by Anti-Corruption Report.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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