FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe, Aaron Bass and Céline Serpagli, Kiejman & Marembert
1.3 Guidelines for the Interpretation and Enforcement of National Legislation There are no official guidelines for the interpretation of criminal legislation concerning corruption and related offences, which is the role of French criminal courts. Several public bodies, however, have issued guide - lines on other matters pertaining to the enforcement of France’s anti-corruption legislation. • The AFA has issued general recommendations to public and private actors with respect to prevent - ing and detecting corruption and related offences. In addition to these general recommendations, the AFA has also issued practical guides, which are generally subject to public consultation. • The Financial National Prosecutor Office ( Parquet National Financier or PNF), which is tasked with investigating the most complex white-collar crimes including corruption, has issued guidelines (some - times jointly with the AFA) on different matters related to France’s anti-corruption legislation. On 16 January 2023, the PNF updated its guidelines on deferred prosecution agreements (CJIP) to bring greater transparency, clarity and predictability to companies considering entering into such agree - ments. The guidelines clarify the factors taken into consideration by the PNF to enter a deferred prosecution agreement with a company, and the mitigating and aggravating factors taken into con - sideration for calculating the fine. In March 2023, the PNF and the AFA issued guidelines on internal anti-corruption investigations. • The High Authority for Transparency in Public Life ( Haute Autorité pour la Transparence de la Vie Pub- lique or HATVP), which is responsible for monitor - ing French public officials’ and lobbyists’ activities, also issues guidelines on matters pertaining to its mandates. 1.4 Recent Key Amendments to National Legislation The Sapin II Law has been the most significant change brought to France’s legislation in recent years. Since then, only smaller amendments have been made to France’s legislation, like the 2022 “Wasserman” Law, which strengthened the protection of whistle-blowers under French law.
Both in 2021 and in 2024, a “Sapin III” bill was tabled in the Parliament. However, it failed each time to gain traction in Parliament. 2. Bribery and Corruption Elements 2.1 Bribery The crime of bribery under French law consists in the direct or indirect offer of promises or advantages for the benefit of a public official or a private actor in exchange for the performance, refrain or delay of an action in relation to or facilitated by their office, duty or mandate. “Direct or indirect” implies that the crime can be committed through intermediaries. Further - more, the person whose actions are sought does not need to be the ultimate beneficiary of the bribe, which can benefit third parties (relatives, political allies, etc). The French criminal code (FCC) differentiates between “active” and “passive” bribery. “Active” bribery offenc - es target the briber, while “passive” bribery targets the bribe-taker. Bribery, whether “active” or “passive”, is committed by the act of offering, soliciting or agreeing to a bribe regardless of whether the bribe is actually paid, or the requested act performed. Expenses related to hospitality, gifts, travel, meals, promotional activities or facilitation payments may constitute an undue advantage if they are offered or received with the intention of bribing someone in their professional duties. The offence requires the briber’s awareness and intent to monetise the position or pre - rogatives of the bribe-taker (general intent), as well as knowledge of the objective pursued (specific intent). The FCC establishes further distinctions depending on the identity of the bribe-taker. For instance, Article 433-1 of the FCC incriminates active bribery of French officials, while Article 435-3 of the FCC incriminates active bribery of foreign public officials. “Public officials” under French anti-corruption law encompasses elected official, public servants, as well as any person discharging a public service mission. The French supreme court ( Cour de Cassation ) has
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