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

Introduced by the Sapin II Law and enshrined in Article 41-1-2 of the Code of Criminal Procedure, the Convention judiciaire d’intérêt public (CJIP) - a type of deferred prosecution agreement - is an alternative to prosecution based on a settlement which can benefit legal entities, whether public  or private, regardless of their size, legal form, sector of activity or nationality, accused of active …

Settlement

Introduced by the Sapin II Law and enshrined in Article 41-1-2 of the Code of Criminal Procedure, the Convention judiciaire d’intérêt public (CJIP) - a type of deferred prosecution agreement - is an alternative to prosecution based on a settlement which can benefit legal entities, whether public  or private, regardless of their size, legal form, sector of activity or nationality, accused of active influence peddling by public officials committed by private individuals , active influence peddling by a public official in a foreign state or within a public international organization  and private influence peddling .

As long as a public prosecution has not been initiated, the public prosecutor may propose that the accused legal entity enter into a CJIP, requiring it to pay a public-interest fine, the amount of which is set in proportion to the benefits derived from the breaches observed, calculated on the basis of the gross or net operating surplus derived from the contracts obtained by the legal entity, or in consideration of the total value of the contract, up to a limit of 30% of the average annual sales calculated on the basis of the last three annual sales known at the date on which the said breaches were observed. In the absence of operation of the site concerned by the practices, the benefits derived from the infringement may be assessed in the light of expected operating flows, after deduction of the cost of investments made exclusively for the operation of the site in question and of commitments to restore it, even if, in such a decision, the public prosecutor prefers not to take this into account and to consider, where appropriate, only aggravating and mitigating factors .

Mitigating factors include the active cooperation of the accused legal entity, which responded fully and promptly to the questions put to it by the Financial Prosecutor's Office (Parquet national financier - PNF)  unequivocal acknowledgement of the facts , prior compensation of the victims , or the implementation, as soon as the facts were revealed, of corrective measures, in particular the obligations imposed by the Sapin II Law, even though it was not bound to do so . On the other hand, the company's legal history, the serious disturbance to public order caused by these facts, the involvement of high-level public officials , or the concealment of breaches , may justify an increase in the amount of the fine.

Under the CJIP procedure, the accused legal entity may also submit to a compliance program  for a maximum period of three years, under the supervision of the French Anti-corruption Agency (Agence française anticorruption - AFA), even if it does not fall within the scope of Article 17 of the Sapin II Law. Before imposing such a requirement, the PNF, in coordination with the AFA, assesses the appropriateness of this measure, taking into account the conclusions of any own-initiative control carried out by the AFA or requested by the PNF prior to the signature of the CJIP , or the fulfillment of a compliance obligation imposed by a foreign authority, or by an international financial institution, and close to the requirements of Article 41-1-2 of the Code of Criminal Procedure . Thus, if the quality of the internal measures and procedures put in place by the legal entity to prevent and detect breaches of probity appears satisfactory, the AFA may decide to exempt it from implementing a new compliance program, and restrict itself to simply supervising it.

In addition, where the victim has been identified, the agreement also sets out the amount and terms of compensation for the damage caused to the victim by the offense  within a period of no more than one year, unless the damage has already been compensated in proceedings abroad.

The CJIP  proposal, which is contractual in nature, must be accepted by the accused legal entity. In this case, the public prosecutor submits a request for validation to the president of the judicial court, who must hold a public hearing of the accused legal entity and the victim, and, at the end of the hearing, verify that the procedure is justified, that it has been carried out correctly, that the amount of the fine is in line with the amount of the fine, and that the measures provided for are proportionate to the benefits derived from the breaches. This ordinance, which enables the obligations contained in the agreement to be carried out, does not, however, entail a finding of guilt. It has neither the nature nor the effects of a conviction, and is not subject to appeal. The legal entity has ten days from the date of validation to exercise its right of withdrawal. If it does not exercise this right, the obligations of the agreement are carried out. Full performance of the obligations under the agreement extinguishes the public prosecution. On the other hand, in the event of non-performance or improper performance of the obligations imposed by the CJIP, the proposal becomes null and void. In fact, it is the success or failure of the measures decided upon that determines the extinction of the public prosecution and the possibility for the Public Prosecutor to take legal action at a later date, in the strict sense of the term, if the statute of limitations still allows.

While this procedure ultimately results in a criminal response that is better suited to the business world, since it offers the advantage of speed and proportionality, while prioritizing the prevention of repeat offenses, it can be very costly in financial terms. Indeed, in addition to the public interest fine and the compensation for damages, the costs incurred by AFA in calling in experts or qualified persons or authorities to assist it in carrying out the legal, financial, tax and accounting analyses required for its control mission must be borne by the accused legal entity .

Excluding the State and local authorities and their groupings when the offense has not been committed in the exercise of activities likely to be the subject of public service delegation agreements (Criminal Code, Art. 121-2).

CJIP, 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and  LawLex202400002362JBJ, cited above.

CJIP, 15 May 2023, LawLex202300011666JBJ, cited above; 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002364JBJ, cited above.

CJIP, 15 May 2023, LawLex202400002260JBJ, cited above.

Guidelines for the implementation of AFA's public interest judicial agreement, 16 January 2023, 18.

CJIP, 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002364JBJ, aforementioned, awarding EUR 250,000 in damages to each victim.

CJIP, 15 May 2023, LawLex202400002260JBJ, aforementioned, setting a ceiling of EUR 923,000; 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002364JBJ, aforementioned, imposing a ceiling of EUR 300,000.

CJIP, 15 May 2023, LawLex202300011666JBJ.

CJIP, 15 May 2023, LawLex202300011666JBJ, cited above; 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002362JBJ.

CJIP, 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002362JBJ, cited above.

CJIP, 15 May 2023, LawLex202300011666JBJ, cited above.

CJIP, 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002362JBJ, préc.

CJIP, 15 May 2023, LawLex202400002260JBJ, cited above; 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002362JBJ, cited above.

Compliance

26. Settlement

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

26. Settlement

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise