FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe, Aaron Bass and Céline Serpagli, Kiejman & Marembert
As a general rule, fines imposed on companies may be up to five times those applicable to individuals.
offences provided for under French law, in particular tax fraud and money laundering. For instance, in a case pertaining to mining rights in Western Africa where prosecutors had identified wires of more than USD10.5 million from the company which had secured the rights to an agent, who was publicly known to be a close friend of the president of the African country in question, but where the facts took place before December 2016, prosecutors dropped the bribery charges while securing a guilty plea from the agent for money laundering of the proceeds of tax fraud. Money laundering has also allowed prosecutors to bypass the remaining limitations mentioned above, thanks to a creative – and questionable – 2012 deci - sion by the Criminal Division of the Cour de cassation (France’s judicial Supreme Court). The case pertained to kickbacks received by a minister of petroleum of an African country in the late 1990s. He was prosecuted in France for money laundering of bribery, although the crimes of bribery of foreign agent (both “active” and “passive”) did not exist at the time under French law. The defendant argued that no crime of money laundering could have been committed in the absence of a predicate offence under French law. The Paris Court of Appeal upheld his conviction, finding that “the funds, which were deposited into Dan Z’s Swiss accounts before being transferred to France where they were laundered, were compensation for acts he performed in Nigeria in his official capacity; such acts are criminal offences under French domestic criminal law and are classified as passive bribery of a public official” (ie, passive bribery of a French public official, which did exist at the time). This reasoning was upheld by France’s Cour de cassation . In other words, in cases of money laundering in France of the proceeds of predicate offences committed abroad (and usually not prosecuted themselves for lack of jurisdiction), case law holds that prosecutors and criminal courts can reason “as if” the said non-prosecuted predicate offences had been committed in France and involved, as the case may be, French officials and/or French public funds. In its latest Mutual Evaluation of France, the Financial Action Task Force (FATF) noted about this case: “it
4. Defences and Exceptions 4.1 Defences
French law does not provide for specific defences for the above-mentioned offences. However, the gradual expansion over 15 years of the repressive corpus provided for by the French Criminal Code has led to the development of specific defences, reinforced by France’s choice to enact separate legal bases for bribery, influence-peddling or embezzlement of public funds, further distinguishing between “active” crimes (targeting the person who bribes) and “pas - sive” crimes (targeting the person who is bribed), as well as whether the bribe taker is a French official, a French judge, a member of an international organisa - tion or a foreign official. For example, active bribery of foreign officials became an offence under French law in 2000. However, it was not until the Sapin II Law of 9 December 2016 that influence-peddling to obtain a favourable decision from a foreign official also became one. As French criminal law is not retroactive, it was not unusual in international bribery cases dealing with events prior to the said law, in which financial flows to an inter - mediary were identified, for the defendants to argue that the prosecution failed to evidence that a foreign official had benefited from the financial flows, and that they were therefore to be construed as lobbying or, at worst, as influence-peddling, none of which were illegal under French law at the relevant time. Although the French Criminal Code now covers most scenarios, two notable exceptions remain. First, the offence of embezzlement of public funds only applies to French public funds. Second, influence-peddling to obtain a favourable decision from individuals belong - ing to the private sector is not a crime under French law. 4.2 Exceptions Against such specific defences, French prosecu - tors have often elected to fall back on other criminal
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