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

Under Article 17, II, 7° of the Sapin II Law, the governing body is required to set up a disciplinary system providing for employees to be sanctioned in the event of a breach of its code of conduct. The disciplinary system is part of the third pillar of the anti-corruption system, dedicated to risk management and, more specifically, risk remediation. It covers all the measures an undertaking reser …

Disciplinary sanctions

Under Article 17, II, 7° of the Sapin II Law, the governing body is required to set up a disciplinary system providing for employees to be sanctioned in the event of a breach of its code of conduct. The disciplinary system is part of the third pillar of the anti-corruption system, dedicated to risk management and, more specifically, risk remediation. It covers all the measures an undertaking reserves the right to take to punish behavior it considers to be misconduct. Failure to comply with the disciplinary rules set out in the internal regulations, and therefore in the anti-corruption code of conduct incorporated therein, constitutes misconduct likely to justify the application of a disciplinary sanction. According to the French anti-corruption agency (Agence française anticorruption AFA), no sanction may be imposed on an employee if it is not provided for in the undertaking's internal regulations .

Disciplinary sanctions must be proportionate to the misconduct committed . Disciplinary sanctions range from a warning  to a reprimand or dismissal .

It is advisable for the undertaking to keep a record of disciplinary sanctions taken against its staff, in order to identify the causes and avoid their repetition . Whatever the medium used to carry out this survey, the undertaking must ensure the strict confidentiality of its content, and prepare it in compliance with the rules governing the protection of personal data . The governing body may request that facts and disciplinary sanctions be circulated within the entity, in a format that guarantees total anonymity and ensures that those sanctioned are not easily identifiable, as a reminder of the undertaking's zero-tolerance policy with regard to any behavior contrary to integrity and probity .

Furthermore, the governing body is not obliged to wait for a criminal judgment to be handed down before implementing disciplinary sanctions if the facts are proven and their seriousness justifies it. The implementation of such sanctions may in fact be based on the findings of a detailed internal investigation, making it possible to rigorously establish the materiality of the facts of which the person concerned is accused . Similarly, when the undertaking is not obliged, by virtue of its position, to implement the provisions of Article 40 of the Code of Criminal Procedure, by informing the competent prosecuting authority of any infringements which might constitute a criminal offense, it remains free to do so if it considers it appropriate, and to lodge a complaint .

AFA recommendations designed to help public and private legal entities prevent and detect corruption, influence peddling, misappropriation of public funds and favoritism of 4 December 2020, JORF of 12 January 2021, pts 339 and 340.

Ibid, pt 341. See, for an illustration, considering disproportionate the dismissal of an employee who had taken advantage of his position to demand a gift worth 250 euros from an undertaking service provider, in violation of the internal code of conduct.

CA Paris, 11 October 2017, LawLex202400002717JBJ, deeming justified the warning received by an employee, for lack of vigilance in handling information received during telephone interviews and failure to report a situation likely to present a risk and behavior reflecting non-compliance with internal procedures.

CA Aix-en-Provence, 28 April 2017, LawLex202300011956JBJ, considering that the director of operations France of an undertaking, who continued to work with a company responsible for providing him with information on competitors' bids in the context of contracts in return for a percentage of the contracts obtained, in violation of the undertaking's code of ethics which he attested to having read and agreed to respect, committed serious misconduct justifying his dismissal; CA Reims, 6 February 2019, LawLex202400002710JBJ, holding that an employee who accepts a trip offered by a supplier, commits a breach of the undertaking's internal code of conduct, justifying his dismissal; CA Angers, 29 May 2020, LawLex202400002712JBJ, validating the dismissal of an employee who had accepted gifts from a supplier, in breach of the undertaking's code of conduct; Cass. soc, 31 March 2021, LawLex202400002345JBJ and, on referral, CA Versailles, 2 February 2022, LawLex202400002714JBJ, holding that an employee's acceptance of substantial gifts from a client of the agency he managed constituted a breach of the undertaking's code of conduct, liable to result in dismissal.

Compliance

68. Disciplinary sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

68. Disciplinary sanctions

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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