Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

The audit process is detailed in the Charter of rights and duties of audit stakeholders, adopted by the French anti-corruption agency (Agence française anticorruption- AFA) in April 2019.
Under the terms of this text, AFA's audit missions are carried out by an Audit Sub-Directorate, made up of the Economic Actors Audit Department and the Public Actors Audit Department.
The investigation phase can  …

Audit process

The audit process is detailed in the Charter of rights and duties of audit stakeholders, adopted by the French anti-corruption agency (Agence française anticorruption- AFA) in April 2019.

Under the terms of this text, AFA's audit missions are carried out by an Audit Sub-Directorate, made up of the Economic Actors Audit Department and the Public Actors Audit Department.

The investigation phase can take place in one of two ways, at the discretion of the AFA Director. The first is a documentary audit prior to an on-site audit, and the second is an on-site audit prior to a documentary audit.

1) Documentary audit prior to an on-site audit

The procedure begins with the dispatch, by registered letter with acknowledgement of receipt, of a notice to the directors of the audited entity, informing them of the audit to which they are subject. The letter indicates the purpose and scope of the audit, as well as the composition of the audit team. To facilitate operations, the managers of the audited entity are asked to designate a person to represent them at AFA throughout the procedure, and to reply to letters and requests for documents sent by AFA. This representative, who may be assisted by any person of his or her choice, must have a functional and hierarchical position enabling him or her to monitor and organize requests for interviews and communication of information.

One or more technical meetings are organized with the audited entity's representative and other members of the audit team, in order to present the objectives of the audit in its various phases. These meetings provide an opportunity to clarify the organization of the audit and the content of the documents expected in response to AFA's requests. The schedule and technical details of these meetings are agreed between the representative of the audited entity and the AFA audit team, whose contact details appear on the notice sent by AFA. They are organized within fifteen days of the audit notice being sent out.

As part of the documentary audit, AFA agents may obtain from the representatives of the entity being audited any professional document, whatever its nature or medium, or any useful information. Documents and information relating to a period prior to 1 June 2017, the date on which the Sapin II Law came into force, may be useful even if the breaches likely to give rise to sanctions arose after that date, provided that they are of such a nature as to enable a concrete apprehension of the audited entity's exposure to the risks of corruption and trading in influence, having regard to the way in which the audited entity has dealt with exposure to these risks in the past . The audited entity must submit a copy of the documents requested by the AFA, within a time-limit set by the AFA, in a dematerialized form that can be read using standard office automation tools or open-source software.

A questionnaire containing over 160 questions, freely available on the AFA website, is attached to the audit notice. AFA may subsequently make several successive requests for documents, giving the entity concerned a reasonable period of time in which to respond, particularly in view of the volume of documents requested. Failure to transmit the requested documents or to answer the questions sent by AFA may, in the absence of any justification, be considered as constituting the offence of obstruction .

The on-site audit, which follows the documentary audit, is preceded by a notice of on-site audit sent to the head of the audited entity by registered letter with acknowledgement of receipt. The notice specifies the date of the first meeting on the premises of the audited entity, the content and expected duration of the on-site audit, and the list of AFA agents called upon to take part in the interviews. On-site audits may only be carried out on business premises, excluding private homes, and only during working hours. The representative of the audited entity may be assisted by a person of his or her choice during the on-site audit. Depending on the circumstances, several visits to the audited entity's premises may be necessary. AFA agents carry out on-site checks on the accuracy of the information provided, and may interview any person whose assistance seems necessary, under conditions that ensure the confidentiality of their exchanges. To this end, an initial list of persons with whom AFA wishes to interview is attached to the notice of on-site audit, but other persons may be requested to be interviewed throughout the on-site audit. Unlike in the case of the audited entity's representative, there is no legal or regulatory provision for these persons to be present during the interviews. However, at the request of the audit team or, with its agreement, at the request of the audited entity, an interview may take place with several people at the same time, including the audited entity's advisors, provided that the confidentiality of exchanges is guaranteed. The Sanctions Committee considers that, since there is no legal or regulatory requirement to draw up minutes of interviews conducted by AFA agents, any failure to formalize such interviews does not in itself vitiate the inspection procedure . AFA agents may make an on-site copy of the documents consulted. Any obstacle to an on-site audit may be considered as obstruction. The on-site audit concludes with a meeting with the entity being audited, during which the list of requests for documents and the answers obtained, as well as the interviews requested and those actually carried out, are reviewed. During this meeting, the AFA audit team may gather any information it has not yet received, or any documents that the audited entity considers useful to provide.

2) On-site audit preceding documentary audit

The procedure begins with notification of the audit to the management of the audited entity. The letter indicates the purpose and scope of the audit, as well as the composition of the audit team and the dates of the first on-site audit period, which may take place a few days after the audit notice is sent. The undertaking is invited to appoint a representative.

The first on-site audit takes place after the audit notice has been sent out. Depending on the circumstances, AFA agents may visit the audited entity several times. They may interview any person whose assistance seems necessary, under conditions that ensure the confidentiality of their exchanges. The examination of documents provided on site may be subject to the opinion of experts and qualified persons duly mandated by AFA. AFA agents may make an on-site copy of the documents consulted. Obstructing an on-site audit may be considered an offense of obstruction.

After the on-site audit, AFA agents may carry out a documentary audit, asking representatives of the audited entity to provide them with any professional document, whatever its nature or medium, or any useful information. Failure to provide the documents requested, or to answer the questions sent by the AFA, may, in the absence of any justification, be considered as constituting the offense of obstruction.

At the end of the audit, a meeting is held with the audited entity to review the list of requests for documents and responses obtained, and the interviews requested and those actually carried out. During this meeting, the AFA audit team may gather any information it has not yet received, or any documents that the audited entity considers useful to provide.

The audit concludes with the drafting of a written report containing AFA's observations concerning the existence, quality and effectiveness of the audited entity's anti-corruption system and, where appropriate, recommendations for improving existing procedures. The report is sent to the audited entity by registered letter with acknowledgement of receipt.

Cf. AFA, 4 July 2019, LawLex202200001320JBJ, in which the Sanctions Committee stresses that the transactions remain regular despite the absence of publication of a questionnaire, since this instrument is not required by the legislative provisions in force.

Compliance

89. Audit process

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

89. Audit process

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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