On June 2, the French Ministry of Justice issued a new order to French prosecutors on criminal policy relating to international corruption and how such cases should be handled.
In this order, which constitutes a simple orientation, the French Ministry of Justice enumerates how prosecutors can obtain evidence of acts of corruption perpetrated by companies and encourages them in particular on self-declaration by companies.
In this regard, the decree specifies that, although the directors have no legal obligation to report acts of corruption, it may nevertheless be in the interests of the corporation to do so if it wishes to be treated leniently when National Financial , the Prosecutor’s Office (“PNF”) Wonders about the pursuit mode. In this regard, according to the ordinance, the PNF will be able to enter into a dialogue with professional organizations and unions representing the interests of doing business abroad, in order to define and implement a framework and incentive practices for self-reporting.
The ordinance also specifies that the possibility of entering a CJIP (aka “a French DPA”) Will depend on several factors, including, the voluntary self-declaration of conduct and the degree of cooperation of the members of the senior management with the judicial authorities (in particular to identify the individuals involved in the corruption scheme. ).
In doing so, this order is in line with the guidelines published last year by the PNF and the French Anti-Corruption Agency (“AFA”) In which both state authorities that the company has conducted internal investigations have become essential for being considered for a CJIP.
However, a company that decides to self-report bribery remains at risk of prosecution, since self-reporting does not guarantee a particular outcome or the leniency of the prosecution office. Therefore, companies should carefully assess the situation before self-reporting.
The order also made express reference to the general policy of the US Department of Justice (“MJ”), The so-called“ Yates ”memo in which the Ministry of Justice specifies that“for a company to receive the consideration for cooperation [credit] the company must disclose fully to [DOJ] all the relevant facts about individual behaviors.”
This reference to the DOJ of politics by the French Ministry of Justice is not isolated and may demonstrate a trend towards global homogenization of the fight against corruption.
This trend is also reflected in the update of the guidelines issued by the Ministry of Justice in June 2020, on the evaluation of compliance programs. These guidelines require prosecutors to understand why the company chose to implement the compliance program in a particular way, and why and how the compliance of the company program has evolved over time. This echoes the AFA’s recommendations that companies often need to update both their risk of corruption-document-mapping and the anti-corruption compliance program.
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