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France

Anti-Bribery and Corruption Laws in France

France
Source of law International corruption: Articles 435-1 and seq of the [French Criminal Code (French Statute of 13 November 2007, as amended by the French Statute of 17 May 2011, by the French Statute of 9 December 2016 (hereafter Sapin II Law) and by the Ordinance of 18 September 2019)
Offence 

Article 17 of the Sapin II Law, which came into force on June 1st, 2017 

“Large companies”  1 Company employing at least 500 employees, or belonging to a group of companies with at least 500 employees, and whose consolidated turnover or turnover exceeds EUR 100m.   and their managers failing to implement the eight internal preventive anti-corruption measures (such as a code of conduct including a disciplinary system in case of non-compliance by the employees, a corruption risk mapping of the company’s exposure to external solicitations to bribery and an internal alert procedure). 

Public Sector (various Articles of the French Criminal Code) 

Bribing 

Unlawfully offering, promising or giving  2 Whether or not as a result of an unlawful request from such an official.  to a public official (including judicial officers and an elected foreign public official), directly or indirectly, any advantage for the future or past performance or non-performance of any act within the official’s functions, duties or mandate. 

Private Sector (Article 445-1 and Seq. of the French Criminal Code) 

Bribing 

Unlawfully offering to a person holding a management position or any occupation, any advantage for the future or past performance or non-performance of any act within his activity or function, in breach of his legal, professional or contractual obligations. 

Article 17 of the Sapin II Law, which came into force on June 1st, 2017 

“Large companies” and their managers failing to implement the eight internal preventive anti-corruption measures (such as a code of conduct including a disciplinary system in case of non-compliance by the employees, a corruption risk mapping of the company’s exposure to external solicitations to bribery and an internal alert procedure). 

Public Sector (various Articles of the French Criminal Code) 

Being Bribed 

A public official (including judicial officers and an elected foreign public official) unlawfully requesting or accepting for himself or another an advantage for the future or past performance or non-performance of any act within the official’s functions, duties or mandate. 

Private Sector (Article 445-1 and Seq. of the French Criminal Code) 

Being Bribed 

A person holding a management position or any occupation, requesting or accepting, directly or indirectly, any advantage for the future or past performance of an act within his activity in breach of his legal, professional or contractual obligations. 

The bribe   
Is there a presumption that the advantage was given/received corruptly? NoNo
Would corporate hospitality be caught? YesYes
Is there any de minimis? YesYes
Does the bribe have to be monetary? NoNo
Public officials   
Does the offence only apply to bribing public officials? NoNo
Acts performed outside France   
Can bribery performed outside France be caught? Yes 3 Sapin II Law extends the extraterritorial application of the provisions of the Criminal Code relating to corruption. Indeed, the law provides that in the event of offences relating to corruption committed abroad by a French citizen, a person habitually resident in France or carrying out all or part of his economic activity on French territory, French law is applicable in “all circumstances”. Yes
Does the act also need to be illegal in the foreign country of performance? NoNo
Who can be liable?   
French nationals? YesYes
French company? YesYes
French partnership (including limited liability partnerships) incorporated? YesYes
Director of French company? YesYes
French company if the bribe is committed abroad by its foreign subsidiary? YesYes
Foreign subsidiary of a French company if the bribe is committed abroad? Yes  4 For instance, if the French parent company is sentenced as the main offender (“directly or indirectly”) and the foreign subsidiary as an accomplice. Yes 5 See footnote 4.
Foreign national/company/partnership if bribe is committed in France? YesYes
Foreign national domiciled or “ordinarily resident” in France if bribe is committed outside France? Yes  6 Foreign nationals who carry out all or part of their economic activity on French territory also fall within this scope. Yes  7 This may be the case for foreign public officials belonging to an international organisation or arbitrators.
Foreign company/partnership if bribe is committed abroad? No 8 Although the foreign company could be prosecuted if it was an accomplice to a bribery offence committed by a French company. No 9 See footnote 8.
Penalties   
Penalties include: 

Bribing

Individuals  

Corruption involving a person holding a public office: 

  • Imprisonment of up to ten years 
  • Fines up to EUR 1m, where the fine can be increased up to double the value of the advantage resulting from the offence 
  • Fines are raised to EUR 2m or, if this amount exceeds 2m, to twice the amount of the advantage resulting from the offence, when the offence is committed by an organised gang  
  • Fines of up to EUR 200,000 for Chairmen, CEOs, managers, directors, on whom the law imposes responsibility for compliance with the new obligations 
  • The French Anti-corruption agency can order the penalty to be made public / published 

Corruption in the private sector: 

  • Imprisonment of up to five years 
  • Fines of up to EUR 500,000 where the amount of the fine can be increased up to twice the value of the advantage resulting from the offence 
  • Fines of up to EUR 200,000 for Chairmen, CEOs, managers, directors, on whom the law imposes responsibility for compliance with the new obligations 
  • Additional penalties such as depravation of rights, professional restrictions, publication of the decision, and confiscation of what was used to commit the offence 
  • The French Anti-corruption agency can order the penalty to be made public / published 

Companies 

Corruption of a person holding a public office: 

  • Fines up to EUR 5m where the fine can be increased up to double the value of the advantage resulting from the offence 
  • Fines are raised to EUR 10m or, if this amount exceeds 10m, to twice the amount of the advantage resulting from the offence, when the offence is committed by an organised gang  
  • For a maximum of five years:
    • Prohibition from continuing the activity at stake 
    • Placing under judicial supervision 
    • Being banned from public markets 
    • Exclusion from government procurement 
    • Banning the entity from raising public funds 
    • Banning the entity from writing cheques other than those allowing funds to be withdrawn, certified cheques or using credit cards 
  • Publication of the decision 
  • Confiscation 
  • Since the implementation of Sapin II Law, fine up to EUR 1m if the programme does not comply with legal requirements (i.e. failure to implement any of the eight measures provided for) 
  • Fine of up to 30% of the company’s turnover and the implementation of a compliance programme in case of a settlement with the public prosecutor

 

Being bribed

Individuals

Corruption involving a person holding a public office: 

  • Imprisonment of up to ten years  10  Article 432-11-1 Imprisonment sanction may be reduced by half if, after having denounced the offence, the author or the accomplice has helped to stop it and to identify the other offenders and accomplices.
  • Fines up to EUR 1m, where the fine can be increased up to double the value of the advantage resulting from the offence 
  • Fines are raised to EUR 2m or, if this amount exceeds 2m, to twice the amount of the advantage resulting from the offence, when the offence is committed by an organised gang  
  • Fines of up to EUR 200,000 for Chairmen, CEOs, managers, directors, on whom the law imposes responsibility for compliance with the new obligations 
  • The French Anti-corruption agency can order the penalty to be made public / published 

Corruption in the private sector: 

  • Imprisonment of up to five years 
  • Fines up to EUR 500,000 where the amount of the fine can be increased up to twice the value of the advantage resulting from the offence 
  • Fines of up to EUR 200,000 for Chairmen, CEOs, managers, directors, on whom the law imposes responsibility for compliance with the new obligations 
  • Additional penalties such as depravation of rights, professional restrictions, publication of the decision, and confiscation of what was used to commit the offence 
  • The French Anti-corruption agency can order the penalty to be made public / published 

Companies 

Corruption of a person holding a public office:  11 In case of corruption involving a private person (as distinguished from public officials), companies may also be bribed and therefore be held liable for it.

  • Fines of up to EUR 5m where the fine can be increased up to double the value of the advantage resulting from the offence 
  • Fines are raised to EUR 10m or, if this amount exceeds 10m, to twice the amount of the advantage resulting from the offence, when the offence is committed by an organised gang  
  • Since the implementation of Sapin II Law, fine up to EUR 1m if the programme does not comply with legal requirements (i.e. failure to implement any of the eight measures provided for) 
  • Fine of up to 30% of the company’s turnover and the implementation of a compliance programme in case of a settlement with the public prosecutor 

Corruption of a person not holding a public office:103 

  • Fines up to EUR 2.5m where the amount of the fine can be increased up to twice the value of the advantage resulting from the offence 
  • For a maximum of five years: 
    • Prohibition from continuing the activity at stake 
    • Placing under judicial supervision 
    • Exclusion from government procurement 
    • Being banned from public markets 
    • Banning the entity from raising public funds 
    • Banning the entity from writing cheques other than those allowing funds to be withdrawn, certified cheques or using credit cards 
  • Publication of the decision 
  • Confiscation 
  • Since the implementation of Sapin II Law, fine up to EUR 1m if the program does not comply with legal requirements (i.e. failure to implement any of the eight measures provided for) 
  • Fine of up to 30% of the company’s turnover and the implementation of a compliance programme in case of a settlement with the public prosecutor 
Defences   
Are there any defences available?