This posts introduces a series of four sets of short comments on certain key aspects of the new French Anti-Corruption Guidelines. (1/4)
Pursuant to Article 3 of the French Law n°2016-1691 of December 9, 2016 on Transparency, the Fight Against Corruption and Economic Modernization (the “Sapin 2 Law”), the newly established French Anticorruption Agency (the Agence Française Anticorruption, or “AFA”) published its guidelines in final form on December 22, 2017 (the “Guidelines – see here in their original French version and here in their English version). The Guidelines are designed to help organizations meet the anti-corruption prevention and detection standards set in the Sapin 2 Law.
AFA organized a public consultation on a draft version of the Guidelines in the last quarter of 2017. We understand that, during the consultation, a number of respondents have pointed out that, in the draft version, the legal status of the Guidelines was ambiguous. This point has been well taken and the final version now makes it perfectly clear that the Guidelines are not legally binding. This is not a surprise, given the lack of rulemaking power of the agency. However, the Guidelines can be expected to play a key role in AFA’s controls and sanctions, in the framework of article 17 of the Sapin 2 Law, which requires companies and state-owned enterprises, subject to certain size thresholds, to implement an anti-corruption compliance program. Companies with significant French activity are thus strongly advised to conform to the fullest possible extent with the Guidelines, and to be ready to justify any deviation. In this context it is interesting to notice that the AFA Guidelines put much less emphasis that their US (see here) or UK (see here) predecessors on flexibility and the idea that there is no “one-size-fits-all” when it comes to corporate compliance.
