With AFA, France is offering the world a distinctive compliance strategy that is both radical and yet obviously good. Notice how the US and UK reward compliance (or punish non-compliance). The United States offers penalty reductions for pre-existing and corrective compliance. The UK goes further by creating a legal defense for “adequate procedures”: reasonably good pre-existing compliance measures.
But neither country legally requires compliance with the fight against corruption. In other words, in the US and UK systems, failure to adopt an anti-corruption compliance program is not, in and of itself, illegal. I find that many misunderstand this. A company cannot be penalized for failing to implement an anti-corruption compliance program.
In the US and UK, a company of angels would have no reason to embrace compliance. If you’re confident that your employees will never pay a bribe, there’s no reason to invest in compliance. Nice idea. . . if there was such a thing as a company of angels.
But there is none. And yet, in the United States and the United Kingdom, unless a credible allegation of corruption arises within a company and law enforcement authorities investigate that company, the government does not. will not ask if the company has a compliance program in place. Compliance assessments are essentially reactive. It is a “wait and see” approach.
Both systems have done great things. They have moved the fight against corruption forward in a serious and historic way. But the UK looked at the US experience and broke new ground based on what it saw. France has done the same.
France basically comes in and says, “Wait a minute. Why don’t we just require companies over a certain size to adopt compliance programs? Wouldn’t that be a cleaner way to encourage compliance and deter corruption? “
Duh. A notion that is both radical and obvious.
Unless you are a company of angels.
Thus, in France, a company can be sanctioned for non-compliance, even in the absence of suspicion of corruption. The AFA is made up of dedicated compliance experts who promulgate guidance and help companies implement it. The AFA does not fight corruption – if it finds evidence, it refers the case to the criminal prosecutor. Their exclusive job is to help businesses design and adopt compliance.
I suspect that this time will justify the approach of France. I hope other countries will take note and follow France’s example. France can now claim the new best idea.