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

Article 432-11, 1° of the Criminal Code punishes passive corruption, i.e. when viewed from the bribe-taker's point of view, which consists in the fact of a public official, entrusted with a public service mission or invested with a public elective mandate , soliciting or accepting, without right, offers, promises, gifts, presents or advantages of any kind, for himself or for others .

Article 433-1 punishes active corruption of public officials, i.e. seen from the briber's point of view, which consists in a private individual offering or giving to a public official, for himself or for another, offers, promises, donations gifts or benefits of any kind .

In both cases, the aim is either to provoke or to “thank” someone for the performance or abstention  of an act by the public official , whether this is an act in the course of his or her function, mission or mandate , or an act facilitated by his or her function, mission or mandate . For example, the offense of public corruption is committed when an EDF (Electricité de France) employee provides information on contracts being considered by his/her undertaking, in order to enable an individual to benefit from the award of a project , or when a bank manager offers reduced rates to legal representatives, in return for opening accounts in the name of companies placed under court administration for several years , the deposit of an envelope containing a bundle of banknotes in the briefcase of an agent of the department responsible for combating illegal employment at the end of an inspection carried out by the latter , the gift to a public official of an Egyptian statuette and an invitation to a restaurant , the concession of a municipal water service in return for a Mediterranean cruise and air transport , or the payment of sums of money to a member of a local council/municipality or a commercial planning commission, in order to obtain permission from this body to build a shopping center .

Case law interprets “the performance of an official act” broadly: it does not require the bribe-taker to have performed the act in question himself, as long as it was part of his duties to propose or prepare it . Such is the case of an agent of a local authority's architectural department who solicits and receives donations from a contractor to advise him of the city's tendering projects , or a civil servant who informs a contractor of future public works contracts envisaged in his district .

The Law of 30 June 2000  introduced a specific regime for foreign public officials, in addition to the ordinary offense. Article 435-1 of the Criminal Code punishes the passive corruption of foreign public officials, which consists in the act, by a person holding public authority, entrusted with a public service mission or invested with an elected public mandate in a foreign State or within a public international organization , of soliciting or accepting, without the right to do so, offers, promises, gifts, presents or advantages of any kind. Article 435-3 punishes the active corruption of foreign public officials, which consists in the fact, by anyone, of offering or giving, without right, to foreign public officials, offers, promises, gifts, presents or advantages of any kind . In both cases, the aim is either to provoke or to “thank” the foreign public official for performing or abstaining from performing an act related to, or facilitated by, his function, mission or mandate .

Combating the corruption of international public officials is a fundamental aim, given that relations between private undertakings and the public, in the context of international business transactions, including trade and investment, are particularly prone to this type of practice . This is why the provisions of Article 17 of the Sapin II Law require the chairmen, managing directors and chief executives of companies reaching certain thresholds to take compliance measures, in order to prevent and detect the commission of acts of corruption, not only in France, but also abroad.

Cass. crim, 23 January 1973, LawLex202200007915JBJ, characterizing influence peddling of a court officer; 4 July 1974, LawLex202200003417JBJ, of a town hall employee; 2 April 1998, LawLex202200008489JBJ, senior inspector at the RATP; 30 June 1999, LawLex202200003433JBJ, of deputy mayors; 19 March 2003, LawLex202200007980JBJ, of an editor-in-chief and freelance professional journalists of a public broadcasting channel; 17 December 2003, LawLex202200010268JBJ, of a receiver; 24 January 2007, LawLex202200007912JBJ, of the chairman of the board of directors of a public industrial and commercial establishment; 17 June 2009, LawLex202200003437JBJ, of the president of a chamber of trades as a person holding a public elective office; 29 June 2011, LawLex202300012441JBJ, of a customer foreman of the EDF (Électricité de France) company, charged with performing acts intended to satisfy the general interest, even if he has no decision-making power; 11 July 2017, LawLex202200003429JBJ, of a mayor.

Cass. crim., 28 January 1987, LawLex202200003412JBJ; 18 June 1998, LawLex202200003422JBJ; 30 June 1999, LawLex202200003433JBJ; 5 February 2003, LawLex202200003409JBJ; 19 March 2003, LawLex202200007980JBJ; 14 May 2003, LawLex202200003415JBJ; 19 November 2003, LawLex202200010263JBJ; 20 October 2004, LawLex202200007979JBJ; 8 February 2006, LawLex202300001285JBJ; 4 April 2012, LawLex202200008450JBJ; 31 May 2012, LawLex202200008129JBJ; 12 July 2016, LawLex202300002585JBJ.

Cass. crim., 27 October 1997, LawLex200400001327JBJ.

Cass. crim., 30 June 1999, LawLex202200003433JBJ.

Cass. crim., 29 June 2005, LawLex202200010262JBJ.

Cass. crim., 4 July 1974, LawLex202200003417JBJ.

Cass. crim., 1 October 1984, LawLex202200009476JBJ.

Law 2000-595 of 30 June 2000 amending the penal code and the code of penal procedure relative to the fight against corruption, Art 2, JORF 1 July 2000.

This includes bodies set up in application of the Treaty on European Union under Article 435-5 of the Penal Code.

Cass. crim., 14 March 2018, LawLex202200007749JBJ; CJIP, 24 May 2018, LawLex202300011611JBJ ; CA Paris, 25 May 2021, LawLex202300011948JBJ; CJIP, 28 November 2019, LawLex202300011608JBJ; 29 January 2020, LawLex202300011594JBJ; CA Paris, 17 November 2020, LawLex202300012106JBJ; CJIP, 9 February 2021, LawLex202300011603JBJ, financing a presidential campain; Cass. crim., 10 March 2021, LawLex202300012438JBJ; CA Paris, 28 May 2019, LawLex202300011721JBJ; Cass. crim., 16 June 2021, LawLex202200001378JBJ ; CJIP, 12 July 2021, LawLex202400002512JBJ; Cass. crim., 9 June 2022, LawLex202300011669JBJ; 20 June 2022, LawLex202300011643JBJ; 17 November 2022, LawLex202300011683JBJ; 22 June 2023, LawLex202300011641JBJ; ECHR, 12 October 2023, LawLex202300012449JBJ; CJIP, 28 November 2023, LawLex202400000034JBJ ; 29 November 2023, LawLex202400000035JBJ.

Cf. where it is not shown that the funds likely to have been received by either party were intended for the performance or non-performance of an act of their duties by the beneficiaries, CA Paris, 7 January 2015, LawLex202300011780JBJ.

As underlined by the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted in 1997.

Cass. crim., 12 May 1998, LawLex202200003419JBJ; 17 December 2003, LawLex202200010268JBJ; 14 February 2018, LawLex202300011659JBJ; 15 February  2018, LawLex202300011658JBJ; 4 May 2018, LawLex202300011657JBJ; 15 May 2023, LawLex202300011660JBJ; CJIP, 29 November 2023, LawLex202400002361JBJ, LawLex202400002362JBJ and LawLex202400002364JBJ. See also, in the absence of  finding of a corruption “pact”, Cass. crim., 7 March 2006, LawLex202200007911JBJ.

Cass. crim., 25 May 2022 LawLex202200009541JBJ.

Cass. crim., 3 April 2019, LawLex202200009411JBJ, concerning the intervention of a sub-prefect with a commune, to speed up the investigation of a works file; 7 December 2016, LawLex202200010261JBJ, emphasizing that the concealed negotiation of the transfer of his shares in a SCP (professional civil partnership), carried out by a notary, does not constitute an act falling within his missions or facilitated by them.

Cass. crim., 6 February 1969, LawLex202200008095JBJ, sanctioning the fact, for a civil receiver of the Agence judiciaire du Trésor, of communicating to an office for the defense of civil servants, files and information which he was only able to obtain in the exercise of his attributions; 3 June 1997, LawLex202200003416JBJ, retaining the culpability of a prefecture employee assigned to housing who offered residence permits to foreigners in an irregular situation.

Cass. crim., 26 January 2011, LawLex202200010267JBJ.

Cass. crim., 8 October 2003, LawLex202200010266JBJ.

Cass. crim., 11 December 2018, LawLex202200009412JBJ.

Cass. crim., 22 January 2014, LawLex202200008246JBJ.

10. Exercising a public function