FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe, Aaron Bass and Céline Serpagli, Kiejman & Marembert
held that an individual is discharging a public service mission where they are required, directly or indirectly, to perform acts in the general interest (Crim., 30 Janu - ary 2013, No 11-89.224). As such, employees of state-controlled companies may fall within the scope of bribery of a “public offi - cial” under French law. Bribery between private individuals is also punishable and concerns any person exercising, in the course of their professional or social activities, a manage - ment function or performing work for another person or entity (FCC, Art. 445-1). Failure to prevent bribery is currently not a crime under French law. 2.2 Influence-Peddling Influence-peddling is a crime under French law. It consists in the direct or indirect offer of promises or advantages for the benefit of a person in order for such person to use its real or alleged influence in view of obtaining from public bodies or administrations, distinctions, employment positions, tenders or any other favourable decisions. As for the crime of bribery: • French law differentiates between “active” and “passive” influence-peddling; • the crime is committed by the act of offering, solic - iting or agreeing; and • the influence-peddler does not have to be the ulti - mate beneficiary of the benefits. The FCC incriminates influence-peddling to obtain a favourable decision from French public officials, judg - es, members of international organisations, or foreign public officials. Influence-peddling to obtain a favourable decision from a private actor is not a crime under French law. 2.3 Financial Record-Keeping Willingly undermining the accuracy of corporate books and records or the reliability of financial information are criminal offences under French law.
Pursuant to Article 1743, 1° of the French General Tax Code, to knowingly omit to record certain entries or make inaccurate or fictitious entries in corporate books and records is a crime which carries a maxi - mum of five years’ imprisonment and a maximum fine of EUR500,000 or up to double the proceeds of the crime. Article L242-6 of the Commercial Code also punishes with five years’ imprisonment and a fine of EUR375,000 the president or directors of a public limited company for publishing or presenting to shareholders annual accounts that do not give a true and fair view of the results of operations for the financial year, the financial position and assets at the end of that period, with a view to concealing the true situation of the company. Specific penalties also apply in cases involving the publication or communication of false or misleading information concerning the situation or prospects of a listed company (Articles L. 465-3-2 et seq. of the French Monetary and Financial Code). These offences are punishable by two years’ impris - onment and a fine of EUR1.5 million which may be increased to up to ten times the amount of the gain obtained. 2.4 Public Officials Embezzlement of public funds (FCC, Article 432-15), unlawful taking of interest (FCC, Article 432-12 and 432-12-1) and favouritism (FCC, Article 432-14) are crimes under French criminal law. The crime of embezzlement of public funds is defined as the destruction, misappropriation or purloining by a public official of a document or security, of private or public funds, papers, documents or securities rep - resenting such funds, or of any object entrusted to them as part of their function or tasks, committed by a person holding public authority or discharging a public service mission, a public accountant, a public deposi - tary or any of their subordinates. The crime carries out a maximum of ten years’ impris - onment and a maximum fine of EUR1 million, which can be increased to EUR2 million or twice the pro -
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