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 French Anti-corruption Agency (AFA) Sanctions Committee specifies that in exercising its powers of sanction, it is bound to respect all the principles applicable to administrative sanctions, in order to guarantee the effective implementation of the rights protected by the European Court of Human Rights and the Constitution.
The Sanctions Committee's decisions must be substantiated, and no inju …

Conditions for detecting wrongdoing

The French Anti-corruption Agency (AFA) Sanctions Committee specifies that in exercising its powers of sanction, it is bound to respect all the principles applicable to administrative sanctions, in order to guarantee the effective implementation of the rights protected by the European Court of Human Rights and the Constitution.

The Sanctions Committee's decisions must be substantiated, and no injunction or sanction may be issued without the person concerned or his or her representative having been heard or, failing that, duly summoned. In accordance with the principle of the right to a defense, any person implicated must be given the opportunity to know the objections of which he or she is accused, so that he or she can present a useful defense. Respect for this principle applies to the entire procedure, from the preliminary audit leading to the statement of objections, to the discussions before the committee responsible for imposing sanctions .

The only breaches liable to give rise to injunctions and financial sanctions are those relating to failure to comply with the measures and procedures mentioned in Article 17 II of the Sapin II Law , since its entry into force , and which continue up to the date of the Sanctions Committee's decision. Consequently, an undertaking which, since the audit but before the Sanctions Committee meeting, has amended its compliance program to take account of the AFA director's observations, is not liable to sanctions . On the other hand, an undertaking which, at the date of the Sanctions Committee's decision, has not completed the revision of its specific anti-corruption audit procedures is in breach of Article 17, II, 3° of the Sapin II Law, and may be sanctioned accordingly .

The AFA Sanctions Committee specifies that it is the responsibility of the director, when proposing the application of measures of a repressive nature, to establish the elements which seem to him to characterize the breach he is invoking . In the event that the respondent has followed, in all respects, the method recommended by the Agency itself in its Recommendations, it must be considered to have provided sufficient evidence, unless the Agency can demonstrate that it has not, in fact, followed the Recommendations. On the other hand, if the defendant has not followed this method, or has followed it only in part, as it is entitled to do, given that the Recommendations are no more than a reference framework whose use is in no way compulsory, it is up to the defendant to demonstrate the relevance, quality and effectiveness of its system for detecting and preventing corruption, by proving the validity of the method it has freely chosen and followed . If it fails to provide sufficient evidence in this respect, the Director of the Agency is deemed to provide proof of the breach .

Under the terms of VI, 17, of the Sapin II Law, AFA's action is time-barred after three years, from the date on which the breach was established, if no action has been taken to sanction the breach within this period.

AFA, 7 February 2020, LawLex202200001353JBJ.

AFA, Sanctions Committee, 4 July 2019, LawLex202200001320JBJ.

AFA, 4 July 2019, LawLex202200001320JBJ; 7 February 2020, LawLex202200001353JBJ.

Compliance

94. Conditions for detecting wrongdoing

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

94. Conditions for detecting wrongdoing

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise