France will she finally restore its reputation in the fight against corruption? In presenting his bill on 30 March, Finance Minister Michel Sapin hear respond to criticism of the OECD and the NGO Transparency whose index ranks France in the 23 th , behind Qatar and Uruguay. But following a negative opinion of the State Council, the text was amputated his strongest measure: a possible transaction for companies accused of having paid in bribes to foreign officials. What greatly reduce its impact.
While the bill has advanced. Large companies will now be required to set up anti-corruption Plans: enactment of a code of conduct, client integrity checking and suppliers, recruitment compliance specialists, management training … A new National Agency prevention and detection of corruption (ANPDC) will be responsible for monitoring their implementation and will replace the central Service for prevention of corruption, a rump organization never had the means of its ambitions.
“a kind of Canada Dry AMF”
“the agency will be a kind of Canada Dry the AMF, judge Thomas Baudesson, lawyer at Clifford Chance. As the AMF, it will have a disciplinary committee that will punish companies and their leaders. “The fine will go up to one million euros. The agency will also protect “whistleblowers” in anonymizing their testimony or by compensating. Its creation was hailed by NGOs, such as Sherpa or Anticor, who regret all the same that it is under supervision of the ministries of finance and justice, unlike the independent AMF. NGOs also fear the facade of anti-corruption programs and we do not control enough concrete efforts of companies.
Nevertheless, these measures are too limited to offset the bad balance France, when it comes to punish his offending companies. Since 2000 and the adoption of the OECD Convention against corruption, only one company was convicted in France: Total, for the diversion of the “oil against food” program in Iraq. In February, after eleven years of proceedings and an acquittal at trial, the group finally sentenced on appeal to a fine of only EUR 750 000; he has appealed.
Another case involving Safran has damaged the credibility of France. The group was initially sentenced to payment of envelopes on the sidelines of an identity card production contract in Nigeria. Then, the Court of Appeal acquitted him in January 2015, following the prosecution’s submissions! “France is the ban of nations in the fight against corruption”, is shocked Daniel Lebegue, president of Transparency France. Michel Sapin itself acknowledges in the JDD March 27: “lack of conviction in France for payments of bribes has created a climate of suspicion towards our country.” Reminder before 2000, corruption was not only tolerated but was even tax deductible: companies were discreetly at Bercy unveil the tax authorities their ‘fresh’ commissions and gifts distributed for contracts
the complexity of french criminal law
But the abysmal record of France is also due to the heaviness of his justice. “In the US, the Department of Justice (DoJ) may require an enterprise almost all the documents it wants, says Olivier Lopez, lawyer in Paris from US firm Cohen & amp; Gresser. The company must pay itself lawyers to conduct the internal investigation and report to the DoJ incriminating evidence! In France, the law can not go fishing for information, its searches must be targeted and documents peeled by him “another obstacle. The complexity of French criminal law. “Lawyers multiplying appeals and delaying tactics,” complains a magistrate.
All these reasons explain why the minister had been persuaded to introduce a legal innovation, which would have constituted a small revolution. The criminal transaction proposed project was modeled on the “ Foreign Corrupt Practices Act,” US, which allows companies to reach an agreement with the DoJ: without having to admit their guilt, they agree to pay a large fine and put in place internal anti-corruption procedures, in exchange for a cessation of criminal prosecution. This “negotiated justice” was also adopted in the UK, the Netherlands, Italy, Switzerland, Spain and Germany, where more than 50 companies have been fined since 2000.
“France obtains no result but we must continue and on behalf of the great principles of law? The arms fall into me !, fulminates Daniel Lebègue, overwhelmed by the abandonment of this measure. The control pragmatism to acquire the ability to negotiate, that works elsewhere. “The OECD notes that 69% of international corruption disputes are settled via a transaction.
The favorable to employers
Paradoxically, it is the employers’ organizations who are the first promoters of the device. Behind the scenes, they had lobbied hard to impose the transaction that was not foreseen in the original legislation. Bercy was hardly enthusiastic and downright hostile Ministry of Justice. But the MEDEF and AFEP, helped by three lawyers (Jean Veil, François Sureau and Aurélien Hamelle) had convinced Matignon.
Why would employers negotiate as he in doing well in court? “A company is ready to pay expensive rather than hanging a ten-year trial abyss image, explains Joëlle Simon, the legal director of Medef. There is also the risk of a conviction which would bar him access to certain markets. “But it is especially the threat of a heavy sanction overseas scary. Indeed, the United States have given the legal means to prosecute foreign companies for acts of corruption outside their territory. Thus, the DoJ and the Securities and Exchange Commission, the stock market authority, forced four French groups to compromise. A key, heavy fines: $ 137 million to Alcatel and 338 million for Technip in 2010, 398 million in total in 2013, for a case in Iran, and finally 772 million for Alstom in 2014 for multiple offenses in Indonesia , Saudi Arabia, Egypt and Taiwan. Meanwhile Sanofi may, within the scope of an investigation.
These companies have also been forced to welcome in their walls a “monitor” independent, accountable to the DoJ on the establishment anti-corruption process. “The US State cash fines and imposes its control, which exposes us to risks of industrial espionage, regrets Joëlle Simon. If our justice was more effective, the DoJ would surely be less offensive to French companies. “Thus, while traveling at the OECD headquarters in Paris, Leslie Caldwell, assistant general counsel at the DoJ suggested that n was not a coincidence that three French were in the Top 10 of the most sanctioned groups. According to her, US authorities will compensate the incapacity of French justice. Conversely, Transparency cites the case of a Dutch company (SBM Offshore) who was sentenced in his country, a rather large fine to encourage the DOJ to drop charges.
the State Council decided to retoquer the device
in any case, employers assure: advocating for the transaction, it does not try to get by on good account. Corinne Lagache, Director of Compliance Safran, gives the example of the German Siemens, which paid record fines of $ 800 million in the US and 395 million in the country. “They also had to dismiss several leaders, recruit hundreds of compliance officers and engage an impressive number of lawyers and ethics consultants. In the end, the cost is certainly several billion euros “Other guarantee highlighted. The transaction does not prevent criminal prosecution of executives implicated personally
Las, the Board. State decided retoquer the device. “He noted the many questions raised by this innovation while emphasizing its effectiveness in the fight against corruption,” evaded Michel Sapin. “The government, which was not obliged to follow its opinion, it is quickly rallied” Does it plague Medef. It must be said that the measure was far from unanimous. On March 24, 14 NGOs and trade unions had demanded its withdrawal as well. “There was a risk of inequality before the law, certain offenses committed by companies that may be subject to negotiations and others not,” points the vice president Anticor, Eric Alt, who doubted the effectiveness of the transaction “for the lax tradition of France, it was feared that the fines are too low to be dissuasive. Especially as the offending officers would surely have tried to buy their immunity at the time of the transaction. “
Finally, it is not certain that the transaction to the French enough to discourage American sanctions ambitions . “It was possibly a fool’s bargain, warns Bruno Quentin, a lawyer at Gide. If there is a major strategic interest for their companies, I doubt that the US deprive themselves of mess with their French rivals. “Beyond NGOs, most financial judges and judges’ unions were also hostile. “In the US, the prosecutor has more power and knows how to negotiate deal with battalions of lawyers while in France we are poorly armed” tip one of them. Especially, the OECD pin the lack of independence of the prosecution against the policy. Hence the risk to believe that the transaction serves to hush up the case before a judge put his nose there. In the end, Michel Sapin is probably happy to avoid the controversy that pointed. “We’ll see if parliamentarians want to take the subject.”
David Bensoussan and Gaëlle Macke
No comments:
Post a Comment