Written commercial agreement

Significant imbalance

Sudden termination of established relationships

Competition investigation – French law

Civil competition action

French competition law

Competition investigation – European law

European competition law

Vertical restraints

Distribution law

Liability for defective products

Consumer law

Prohibition of measures having equivalent effect

European business law

Corruption

Compliance

Economic law

Shareholders' agreements

Removal of company directors

Abuse of voting rights

Companies

Action for infringement (counterfeiting)

Rights conferred by the trademark

Patentability

Industrial property

Commercial rent review

Renewal of the commercial lease

Despecialization (change of use)

Commercial leases

Reform of contract law

Reform of the law of special contracts

Preliminary sales agreement

Obligation to deliver goods in conformity

Classification of the contract for services (contrat d'entreprise)

Effects of the agency agreement with respect to third parties

Business contracts

Ongoing contracts

Recovery claims

Court-approved transfer plan

Bankruptcy proceedings

Personal data breaches

White collar crime

Commercial law

500 Questions - Business Law

The difference between active corruption and passive corruption lies in the status of the person committing the offense.

Passive corruption refers to the act of a person holding a public office soliciting or accepting offers, promises, gifts, presents, or any advantages that have been proposed to them, in exchange for committing or refraining from committing an act that falls within their functio …

What is meant by active or passive corruption?

Under Article 17, 2°, of the Sapin 2 Law, undertakings must establish an internal alert (whistleblowing) system for the prevention and detection of corruption. This system allows the undertaking to collect reports from employees regarding conduct or situations contrary to the company's code of conduct that may constitute acts of corruption.

The system must be tailored to the undertaking’s risk profile. It must define the role of the direct line managers, who must be able to guide and advise the employee unless they are themselves the perpetrator of the alleged offense. The undertaking must ensure that those responsible for handling reports receive proper training, that confidentiality is maintained throughout the process, and that there are no conflicts of interest.

This system requires the appointment of a whistleblowing liaison officer (référent alerte) and the establishment of a committee composed of qualified individuals, bound by confidentiality obligations, whose purpose is to ensure a collegial decision-making process regarding the actions to be taken in response to received alerts.

Why must undertakings implement an anti-corruption system?

Under Article 17, I, of the Sapin 2 Law, CEOs, managing directors, and heads of companies that employ at least 500 employees or belong to a group of companies whose parent company has its registered office in France and whose workforce includes at least 500 employees and whose turnover exceeds EUR 100 million are required to take measures intended to prevent and detect the commission of the offenses concerned, in France or abroad.

Also concerned are the chairpersons and directors of public industrial and commercial establishments (établissements publics à caractère industriel et commercial - EPIC) employing at least five hundred employees, or belonging to a public group with a workforce of at least five hundred employees, and whose turnover or consolidated turnover exceeds EUR 100 million , as well as the members of the management board of public limited companies governed by Article L. 225-57 of the Commercial Code and employing at least five hundred employees, or belonging to a group of companies with a workforce of at least five hundred employees, and whose turnover or consolidated turnover exceeds 100 million euros.

In Bill No 4586 aimed at strengthening the fight against corruption (known as Sapin III), the condition regarding the location of the parent company's registered office in France is removed, in order to subject the small subsidiaries of large foreign groups established in France to the obligations provided for by Article 17 of the Sapin 2 Law, as long as the parent company exceeds the thresholds set by the law (Art. 1, para. 16).

Who must implement the prevention tools?

Risk mapping allows an undertaking to have a better understanding of the risks it faces, as they are all referenced therein. It takes the form of documentation that is regularly updated, especially when the company expands its activity to new products or new territories. It is intended to identify, analyze, and prioritize the risks of external solicitations for corruption purposes to which the company is exposed, based on the geographical areas and economic sectors in which the company operates.

Each undertaking establishes its own risk map and cannot, therefore, apply a standard model. Since risk mapping should not be generic, the undertaking must be able to justify its relevance, quality, and, if applicable, its effectiveness at the group level . It must assess the risks of corruption or influence peddling by considering the specificities of each entity, such as the sector of activity, geographical area, competitive and regulatory context, or internal organization and decision-making processes. It can be organized by business line, process, entity, or geographical area. The mapping also covers the scope of the undertaking's intervention. The corruption risk mapping can be drawn simultaneously with a mapping of operational, accounting, or fraud risks to optimize the resources mobilized.

The identification of risk scenarios must take into account the environment in which the undertaking operates, which may notably be affected by the countries where it conducts its activities, the sectors of activity, facts that have led to judicial decisions concerning undertakings with comparable risks, etc. For each identified risk scenario, the level of vulnerability of the undertaking must be assessed.

The undertaking will first identify the gross risks to which it is exposed, meaning the risks considered before the implementation of control measures. It will then assess its level of risk control to determine the net or residual risks to which it is exposed and evaluate the effectiveness of the risk control measures, relying in particular on audits conducted. Once the net or residual risks are assessed, they must be prioritized. This prioritization is carried out using an objective method adapted to its specific activities, based on a combination of several criteria such as country risk, turnover, and the nature and type of relationships with third parties.

All these elements constitute the risk map, which must be accompanied by an annex describing the methods of its development and the methodology for identifying, evaluating, prioritizing, and managing risks. The following elements should be retained, as they allow for the assessment of the effective implementation of the mapping:

the record of exchanges with the personnel concerned;

the method of calculating gross risks, as well as the definitions used;

the method for calculating net or residual risks, as well as the definitions adopted;

the procedures for risk identification and classification;

the different versions of the maps presented to the governing bodies;

their validation and the related validated action plans, as well as the minutes of the various dedicated committees.

The different versions of the maps, as well as their audit trail, must be dated, referenced, and archived.

The risk map is validated by the governing body after being, if necessary, presented to the non-executive body. Validation must occur before it is implemented and during each of its updates. The potential need to update the risk map is assessed periodically.

AFA, Sanctions Commission, Decision of 4 July 2019, LawLex202200001320JBJ.

How to identify risks ?

Several tools can be implemented to manage risks:

The Sapin 2 Law requires governing bodies to implement a code of conduct defining and illustrating the various types of behaviors to be prohibited as likely to constitute acts of corruption or influence peddling. This code, intended to be drafted after the development of the risk map, promotes within the undertaking the development of a culture of compliance, ethics, integrity, and probity, which everyone can rely on in their professional relationship. The code of conduct is applicable and enforceable against all personnel of the undertaking. In companies where there is an internal regulation, the code of conduct must be integrated into it. As an instrument of good governance, the code of conduct is applicable wherever the undertaking operates, including abroad. It can be common to all entities of the same undertaking provided that this choice does not hinder its effectiveness. When the undertaking operates abroad, it is advisable to adapt it by taking into account, if necessary, local legal specificities, which may sometimes materialize through the application of different anti-corruption standards. Similarly, when the undertaking engages in significantly varied activities with specific corruption risks, it is appropriate for the undertaking to adapt its code of conduct at the level of its entities or operational units. The opportunity to update the code of conduct is regularly reviewed, particularly after an update of the risk map.

Secondly, the governing body is required to implement a training program for executives and staff most exposed to the risks of corruption and influence peddling. The most exposed staff are identified based on the risk mapping. This may include staff in contact with certain third parties, such as salespeople or buyers, or staff involved in implementing the anti-corruption program. The training for executives and the most exposed staff aims to help them understand the company's anti-corruption program and mitigate the risks identified in the risk mapping. Although the anti-corruption training program is specifically targeted at executives and the most exposed staff, the French Anti-Corruption Agency recommends raising awareness among all staff. The compliance officer must be informed of the training schedule and its educational content. They must also be able to monitor the deployment of the program and the associated indicators.

Thirdly, the governing body must implement procedures to assess the situation of clients, first-tier suppliers, and intermediaries in relation to the risk mapping. The assessments aim to determine whether it is appropriate to enter into a relationship with a third party, continue an ongoing relationship, or terminate it. The nature and depth of the assessments to be conducted and the information to be collected are determined based on the different homogeneous groups of third parties with comparable risk profiles, as identified by the risk mapping. Thus, groups of third parties deemed not or slightly risky may not be subject to an assessment or only a simplified assessment, while the most risky groups will require a thorough assessment. The undertaking ensures that the third party, particularly if it is an intermediary or a supplier, has the experience, qualifications, and skills necessary to carry out its mission. It must specifically identify the reasons for choosing a third party over a competitor of that third party. A warning for an undertaking is if the third party is recommended or imposed by a client. Following the risk level assessment, it is decided either to approve the relationship—with or without enhanced due diligence measures—or to terminate the relationship or not engage in it, or to postpone the decision, particularly due to additional assessments. The evaluation process is periodically renewed, depending on the category and risk level of the third party.

Fourthly, the undertaking is required to implement an internal alert system designed to allow the collection of reports from employees regarding the existence of conduct or situations contrary to the company's code of conduct. The internal alert system must enable the undertaking's employees to inform a dedicated referent of behavior or a situation potentially contrary to the code of conduct, in order to put an end to it and, if necessary, to take appropriate sanctions.

Finally, undertakings must implement accounting control procedures, internal or external, intended to ensure that books, records, and accounts are not used to conceal acts of corruption or influence peddling. These controls can be carried out either by the company's own accounting and financial control services or by using an external auditor during the performance of account certification audits provided for in Article L. 823-9 of the Commercial Code. The accounting control and audit procedures, which contribute to the management of business risks, constitute a key instrument for the prevention and detection of corruption. They are established with regard to risk situations highlighted in the corruption risk mapping, among existing general controls, by deepening or complementing them.

Advice: Don't forget to integrate the code of conduct into the company's internal regulations.

What tools should be implemented to manage risks?

The offense of  corruption consists of an agreement between two individuals, the briber and the bribed, who agree to misuse public office in exchange for an undue advantage. It thus involves two main, distinct acts, neither of which can be considered ancillary to the other and which must, therefore, be classified separately: one as passive corruption, when viewed from the perspective of the bribed, and the other as active corruption, when viewed from the perspective of the briber .

Passive corruption as provided for in Article 432-11 of the Criminal Code constitutes a distinct offense, in its constituent elements, from that of active corruption provided for in Article 433-1 of the same code, and these acts of corruption are subject to different assessment, with regard to the constituent elements, by each of the courts that have examined them.

Cass. crim., 6 June 2011, LawLex202200003381JBJ.

What are corruption offenses?

Articles 432-11 and 433-1 of the Criminal Code require the involvement of a person exercising a public function, such as a person holding public authority, who possesses decision-making and coercive power granted by public authority due to their functions , tasked with a public service mission, to perform acts or exercise a function aimed at satisfying the general interest , or finally, a person vested with a public mandate . The status of the perpetrator and their function are fundamental because the objective sought by the briber is to unjustly obtain the performance or omission of an act, which falls within the scope of the public agent's function, or is facilitated by their function.

As with the corruption of public officials, the briber, in the context of private corruption, aims to obtain from a person the performance or omission of an act related to their activity or facilitated by it, in violation of their legal, contractual, or professional obligations. Only the status of the corrupted person differs. For the corruption of private individuals, it suffices that they perform, within the framework of a professional or social activity, a management function or work for a natural or legal person or any organization, without holding any public office (Art. 445-1 and 445-2 Criminal Code) .

The director of an EDF production center, who makes an agreement with a company responsible for maintaining the center's gardens and official residences, so that it performs work on his personal property in exchange for the company retaining contracts with EDF, is guilty of corruption.

Cass. crim., 20 October 2004, LawLex202200007979JBJ.

The Chief Executive Officer of the Paris City Real Estate Board (régie immobilière de la ville de Paris), tasked with a public service mission, may be charged with the offenses of corruption and influence peddling.

Cass. crim, 3 December 2008, LawLex202200007913JBJ.

Prison administration personnel may be guilty of passive corruption when they grant more favorable treatment to certain inmates.

Cass. crim., 25 April 2007, LawLex202200003418JBJ.

As a person holding an elected public office, a mayor can be charged with the offense of passive corruption for having performed, for remuneration, an act related to their function, mission, or mandate, or facilitated by their function, mission, or mandate.

Cass. crim., 11 July 2017, LawLex202200003429JBJ.

The manager of a subcontracting undertaking who offers an employee of the contracting company to organize a trip for the latter and their spouse, in order to secure subcontracting operations, is guilty of the offense of active bribery.

Cass. crim., 19 May 2010, LawLex202200009675JBJ.

Who can be prosecuted for corruption?

The difference between active corruption and passive corruption lies in the status of the person committing the offense.

Passive corruption refers to the act of a person holding a public office soliciting or accepting offers, promises, gifts, presents, or any advantages that have been proposed to them, in exchange for committing or refraining from committing an act that falls within their function.

Passive corruption refers to a public official soliciting or accepting offers, promises, donations, gifts, or any benefits offered to them in exchange for a commitment to perform or refrain from performing an act within the scope of their official duties.

Active corruption, on the other hand, consists of offering a public official, for their own benefit or that of another, rewards, promises, gifts, presents, or any other benefits, or of providing a public official, for their own benefit or that of another, with the same considerations.

Article 433-1 of the Criminal Code provides for two forms of active corruption. The first consists of offering a public official, for themselves or for others, offers, promises, gifts, presents, or any advantages. The second involves yielding to a public official, for themselves or for others, the same considerations. The offer as well as the granting of an offer can be direct or indirect and thus initiated by a third party.

Active corruption implies that the advantage offered is unjustified, or, in other words, without right.

The proposal or act of transferring aims to obtain, from the corrupted person, a holder of public authority, that they perform or refrain from performing an act of their function, mission, or mandate, or an act facilitated by their function , mission, or mandate . However, it is irrelevant whether the offer, promise, gift, or advantage was actually received by the holders of public authority: the mere proposal is sufficient .

The offense of active corruption is an instantaneous offense that is time-barred from the date of the last payment made in execution of the disputed agreement. Furthermore, the Court of Cassation recently ruled that the offense of active corruption is not concealed; the starting point of the limitation period can only be delayed if the courts establish a concealment of the irregular acts .

Advice: Do not comply with requests aimed at funding political activities.

Deputy mayors may be charged with the offense of active corruption, in the context of a request made by a mayor and their deputies to companies bound by a contract with the municipality, aimed at paying a contribution calculated as a percentage of the amount of certain contracts to finance their political activities and the social actions of the municipality.

The act, by an EDF employee, a person entrusted with a public service mission, of providing information on the markets envisaged by their undertaking, constitutes an act facilitated by the function, within the meaning of Article 433-1, 1° of the Criminal Code, likely to characterize the offense of active corruption.

Cass. crim., 26 January 2011, LawLex202200010267JBJ.

Paying money to a municipal councilor, a member of the commercial urban planning commission, in order to obtain authorization from this body to establish a shopping center constitutes corruption.

Cass. crim., 30 June 1999, LawLex202200003433JBJ.

The offense of active corruption does not require that offers or promises of corruption be accepted, and the offense consummated where  the perpetrator has used either through coercion or threats, or through promises, offers, gifts, or presents for the purpose as defined by law.

Cass. crim., 10 June 1948, LawLex202200003413JBJ.

The offenses of forgery and the use of forgeries are instantaneous offenses whose statute of limitations begins to run from the day the forgery is committed or from its last criminal use, so that a court of appeal cannot, to dismiss the plea that the facts time-barred, state that those offenses were only revealed when the person whose signature was forged was interviewed relative to the documents seized during a search conducted at their home.

Cass. crim., 26 November 2025, LawLex202500012824JBJ.

What are the characteristic elements of active corruption?

Article 432-11 of the Criminal Code penalizes the act of a person exercising a public function soliciting or accepting offers, promises, gifts, presents, or any advantages that have been proposed to them, in exchange for committing or refraining from committing an act that falls within their function.

The consideration is understood broadly and can take very diverse forms, such as, for example:

cruise in the Mediterranean and air transport;

Similarly, case law interprets comprehensively the performance of an act of the function, which does not require the corrupted person to have  performed the act in question .

Solicitation or acceptance must occur “without right” : the advantage that the corrupted party solicits or accepts must be unjustified. The corrupter must aim to provoke the performance or omission of an act by the public official, whether it is an act of their function , mission , or mandate .

Solicitation or acceptance may take place “at any time,” upstream as an incentive, or downstream as a thank you for the act accomplished or the abstention already obtained. The profit gained by the corrupted party may be indirect. Corruption constitutes a formal offense, which is consummated independently of the result, meaning even if the corruption pact is not effectively executed .

Advice: Don't think that the absence of profit eliminates the offense of corruption.

The offense of corruption is characterized by the mere solicitation, whether direct or indirect, of any advantages and the fact that the consideration promised is not paid or provided is irrelevant.

To characterize the offense of active corruption, it is not necessary for the corrupted party to have personally performed the act, as long as it falls within their duties to propose or prepare its execution.

Cass. crim., 29 June 2005, LawLex202200010262JBJ.

Annual gifts, restaurants, car rentals, and trips constitute benefits solicited and accepted without entitlement by a person entrusted with a public service mission, to perform acts of their function or mission, or facilitated by their function or mission.

Cass. crim., 31 May 2012, LawLex202200008129JBJ.

The act, for a public official, of performing outside their duties an act facilitated by their position in exchange for a sum of money, constitutes the offense of passive corruption.

Cass. crim., 6 February 1969, LawLex202200008095JBJ.

The transfer of shares he holds in a professional civil company in which he practices his activity does not constitute an act falling within the missions of a notary or facilitated by them.

Cass. crim., 7 December 2016, LawLex202200010261JBJ.

The intervention of a sub-prefect, with a municipality, to expedite the processing of a file, and with the prefecture, to express a favorable opinion, in exchange for a significant sum of money, constitutes the offense of passive corruption.

Cass. crim., 3 April 2019, LawLex202200009411JBJ.

The fact that a contractor was not subsequently awarded any new contract is irrelevant, as the law penalizes the agreement made between the briber and the bribed without considering its execution.

Cass. crim., 4 July 1974, LawLex202200003417JBJ.

What are the characteristic features of passive corruption?

Intentional corruption generally requires demonstrating both general intent and specific intent. General intent results from:

for passive corruption, the public official's awareness of the illicit nature of their behavior;

for active corruption, from the awareness of the unjustified nature of the advantage that the public official proposes.

Must then be established the specific intent, which is manifested:

regarding passive corruption, by the will of the public official to perform or refrain from performing an act within their function or facilitated by it;

regarding active corruption, by the will of the corrupter that the agent performs or refrains from performing an act of their function or facilitated by their function.

As a general rule, the trial courts infer intent from the materiality of the facts, that is, for passive corruption, from the mere existence of the act of solicitation or acceptance, without characterizing it as fraud , and for active corruption, from the delivery of the undue advantage .

The intentional wrongdoing of the editor-in-chief and two freelance professional journalists of a public broadcasting channel results from their deliberate violation of the duty of integrity and their full awareness of their situation within the channel, the role of this national company, their solicitations to race organizers, and the provision of their influence for compensation.

Cass. crim., 19 March 2003, LawLex202200007980JBJ.

The intentional element of the offense of active corruption is inferred from the uncontested materiality of the facts, which consist of the payment of a sum of money by an individual to the president of a community of communes so that the sale of the land, which was to be approved by the latter, would take place.

Cass. crim., 27 June 2018, LawLex202200009418JBJ.

How to establish intent?

The offense of corruption is an “instantaneous” crime, and is constituted as soon as the agreement is concluded between the briber and the bribed, and renewed with each act of execution of said agreement. 

Whether passive or active, corruption is punishable by ten years of imprisonment and a fine of EUR 1 millionfor a natural person, which may be increased to double the proceeds derived from the offense, in order to adjust the penalty to the actual benefit obtained by the defendant.

The custodial sentence of the perpetrator or an accomplice of passive or active corruption may be reduced by half if, having informed the administrative or judicial authority, they have enabled the offense to cease or, where applicable, identified the other perpetrators or accomplices.

When committed as part of an organized group, the fine is increased to EUR 2 million or, if it exceeds this amount, to double the proceeds of the offense.

Legal entities can, pursuant to Article 433-25 of the Criminal Code, be held criminally liable for acts of active corruption and incur, as a principal penalty, the main fine provided for natural persons increased fivefold, and, as an additional penalty, confiscation or the posting and dissemination of the conviction decision. They may also incur the penalty that imposes the obligation to submit, under the control of the French Anti-Corruption Agency, for a maximum period of five years, to a compliance program. For example, the Judicial Court of Dijon sentenced URGO in 2023 to a fine of more than 1.1 million euros, including 625,000 euros suspended, and to the confiscation of more than 5.4 million euros. 

Pursuant to Article 2 of the Code of Criminal Procedure, the initiation of civil action for compensation for damage caused by corruption is available to all those who have personally suffered a direct injury. Thus, a municipality can obtain compensation for the material damage resulting from the reduction of a tax granted by the mayor in exchange for a sum of money, which constitutes the direct product of the corruption offense. Furthermore, it is possible to seek compensation for moral damage that may result from corruption for institutions .

Civil actions for compensation for damage caused by corruption is open to all approved anti-corruption associations, provided they demonstrate a direct personal injury caused by this offense . Finally, within the meaning of Article L. 621-1 of the Consumer Code, the offenses of active and passive corruption are likely to harm the collective interest of consumers .

The offense of corruption constitutes an instantaneous offense, constituted as soon as the agreement between the briber and the bribed is concluded, which is renewed with each act of execution of the agreement, so that payments resulting from the latter are sufficient to renew the offense.

Cass. crim., 7 May 2024, LawLex202400003548JBJ.

Judicial Court of Dijon, 27 January 2023, LawLex202600000750JBJ.

When a mayor received a large sum of money from an intermediary in exchange for obtaining a municipal order changing the use of a building from a tourist residence to a residential building, in return for the payment of an abusively reduced density surcharge, this reduction constitutes the direct product of the corruption offense for which the municipality is entitled to seek compensation for its material damage.

Cass. crim., 8 February 2006, LawLex202300001285JBJ.

To file as a civil party on the grounds of active corruption, the association Anticor must demonstrate a personal injury directly caused by the offense being prosecuted, within the meaning of Article 2 of the Code of Criminal Procedure.

Cass. crim., 31 January 2018, LawLex202200009421JBJ.

The offenses of active and passive corruption are likely to harm the collective interest of consumers within the meaning of Article L. 621-1 of the Consumer Code.

Cass. crim., 27 October 1997, LawLex200400001327JBJ.

500 Questions - Business Law

267. What is meant by active or passive corruption?

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267. What is meant by active or passive corruption?

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au contenu exclusif Livv – juristes d’entreprise