Actions to take by the end of the year under the French anti-bribery act

03 November 2017

France's anti-bribery act, also called Loi Sapin 2, requires certain French companies to take a number of actions before the end of the year.

French law n° 2016-1691 of 9 December 2016 (France's anti-bribery act, also called the "Loi Sapin 2") and the regulations passed thereunder in 2017 require certain French companies to take a number of actions before the end of the year.

In a nutshell:

  1. French companies with at least 50 employees must implement whistle-blower procedures by 1 January 2018 (failure to do so will not trigger a fine but non-compliance with the law is a default in many facility and other agreements).
  2. French companies that have or belong to a group with at least 500 employees and 100 million euros of turnover in France must implement eight measures against corruption (and traffic of influence) including an internal alert dispositive overlapping with the above-mentioned whistle-blower procedures (failure to do so will not result in a special liability for acts of corruption performed by associated persons short of complicity like pursuant to article 7 of the UK Bribery Act but the new French anti-corruption authority will soon start verifying that such measures have been adopted and can cause an administrative commission to impose fines of up to EUR 200,000 for company officers and EUR 1,000,000 for companies).

The Loi Sapin 2 also requires lobbying professionals to be registered on an official list but this is not discussed in this alert.

Whistle-blower procedures

Groups that have implemented whistle-blower procedures purporting to apply cross-borders will have to adapt these procedures to the strict requirements applying in France, especially those set out in a decree of 19 April 2017 and a deliberation of 22 June 2017 of the CNIL, France's data protection authority (though it is theoretically possible to ask the CNIL for an authorisation to apply slightly different procedures):

  • the procedures must be open not only to employees but also to at least "external and occasional associates";
  • whistle-blowing must be facultative, not compulsory, for employees;
  • notifications can concern criminal and delictual offences and other "serious and manifest" breaches of the law, but not mere violations of codes of conduct unless they relate to acts of corruption (or traffic of influence) and are reported only by employees;
  • anonymous whistle-blowers' alerts cannot be processed unless they meet certain conditions;
  • strict rules apply to storage periods, notification of the whistle-blowers, notification of the persons being targeted, etc.;
  • if the procedures are administered by a person outside the company (within or outside the group) there must be a service contract with it including certain mandatory clauses;
  • the procedures must be submitted to the works council.

Anti-bribery measures

Groups that have implemented anti-bribery measures pursuant to article 7 of the UK Bribery Act may need to take additional actions to comply with article 17 of the Loi Sapin 2:

  • an anti-corruption code of conduct must be not only established but also integrated in the each French company's (or French economic and social unit's) internal regulations so that non-complying employees may be subject to disciplinary sanctions, and therefore it must be submitted to the works council;
  • whistle-blower procedures with the features discussed above must be implemented;
  • due diligence procedures must be established for clients, suppliers and intermediaries, hence not only (and not all) "associated persons" within the meaning of article 8 of the UK Bribery Act.

The other prescribed anti-bribery measures are: corruption risk mapping; accounting control procedures; a training program; disciplinary sanctions; an internal valuation and control program.

Gowling WLG's lawyers stand ready to help clients with implementing these measures, including by adapting existing internal group procedures to French-law requirements.

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