Enforcement authorities worldwide are increasingly confronted with internal investigations conducted by companies under investigation. This type of “cooperation” plays a significant role in their enforcement approach, but the trend has also fuelled the debate on individual rights, legal privilege and the degree of cooperation required to receive prosecution-related credit. While companies need to be aware of these issues in order to make an informed decision on whether to cooperate with enforcement authorities, the issues do vary by country. In earlier articles, we discussed the Dutch, UK and US angle. This month, we turn to France, a jurisdiction which has in recent years significantly increased its criminal enforcement efforts.
With the enhanced enforcement framework, internal investigations in France will become increasingly important, particularly within the context of an envisaged CJIP. However, a careful balancing act is necessary between the need, in the context of a CJIP, of cooperating with authorities, and the preservation of fundamental rights of defence and protection against self-incrimination of individuals.
Settlement transactions under Sapin II
In 2016, France introduced Sapin II, a new legislative framework to tackle bribery and corruption. That law also introduced the possibility for legal entities subject to Sapin II and prosecuted in France to enter into a Convention Judiciaire d’Intérêt Public (CJIP) with the French authorities. This is a settlement transaction similar to the Deferred Prosecution Agreements (DPAs) which already existed in the US and the UK. The CJIP process provides several advantages for a legal entity subject to an investigation by French prosecutors. For example, a CJIP does not lead to a violation being included in a criminal record. Also, entities that benefit from a CJIP can avoid other sanctions, such as being excluded from public tenders or the closing of establishments which were complicit in carrying out the violation. Given that since 2016, 11 CJIPs have been entered into and published on the ARA website, French enforcement will become increasingly important in the upcoming years.What is expected of companies under investigation?
The law does not specifically encourage or reward self-reporting. However, much guidance has been published by various institutions for CJIPs and internal investigations; these shed further light on what is expected from companies under investigations. First, the Agence Française Anticorruption (AFA), an organisation within the Ministry of Justice charged with assisting other regulatory authorities with the detection and prevention of corruption, and the Parquet National Financier (PNF), the national prosecutor specialised in economic and financial crimes, published a joint guidance on the implementation of CJIPs (ARA/PNF Guidance) on 26 July 2019. Second, the Ministry of Justice published a bulletin about its prosecution policy on combating international corruption (Bulletin) on 2 June 2020. Finally, the Conseil National des Barreaux (CNB), the French bar association, published non-binding guidance for French lawyers on the role and rules of an attorney in the context of internal investigations (CNB Guidance) on 12 June 2020. Below are some key takeaways regarding the conduct of internal investigations as outlined in these documents, particularly in the context of potential collaboration with regulatory authorities.Cooperation with the PNF
According to the Bulletin, the possibility to enter into a CJIP depends on certain factors, namely:- the absence of prior violations by the legal entity;
- the voluntary disclosure by the legal entity; and
- the degree of cooperation with the authorities.