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

In accordance with points 225 to 236 of the recommendations issued by the French Anti-corruption Agency (Agence française anticorruption - AFA) on 12 January 2021 , the undertaking must assess the third party's level of risk, on the basis of the information and documents collected, on the one hand, and the analysis of the conditions in which the envisaged relationship takes place, or the analysis  …

Risk assessment

In accordance with points 225 to 236 of the recommendations issued by the French Anti-corruption Agency (Agence française anticorruption - AFA) on 12 January 2021 , the undertaking must assess the third party's level of risk, on the basis of the information and documents collected, on the one hand, and the analysis of the conditions in which the envisaged relationship takes place, or the analysis of the nature and purpose of the relationship, on the other. In addition, the assessment must not overlook any aggravating factors, such as country risk or the behavior of the third party.

Some relationships entail an acute risk of corruption, and therefore require heightened vigilance on the part of undertakings. This is the case with third parties whose mission is to assist the undertaking in obtaining contracts, and who may be encouraged by the undertaking to engage in non-compliant practices in order to circumvent its anti-corruption measures, or who may engage in such practices on their own initiative, without the undertaking being informed. The same applies to relations with third parties involved in public/private relations, where the undertaking is encouraged to identify possible interactions with public officials, especially when they are politically exposed persons, as defined in Article L. 561-10 of the Monetary and Financial Code .

The AFA also indicates that the establishment of a long-term or high-value financial relationship, as well as the level of economic dependence existing between the undertaking and the third party, the payment of commissions linked to obtaining contracts, and the location of the bank account, in particular, if the bank account is domiciled in a country on the list of non-cooperative countries and territories, or even certain payment methods, including cash payments, cross-border payments, or payments made on presentation of non-itemized invoices, may constitute risk factors to be monitored when assessing the third party's level of risk.

The fact that the amount paid to the third party is not consistent with the nature and volume of the goods or services sold by the third party, or is not in line with the market price, or that the third party has no justification or does not actually perform any services, or that the third party has been recommended or imposed by a customer, may also constitute warning signals for the undertaking.

The payment of commissions linked to the awarding of contracts may constitute an additional risk factor when assessing the third party's level of risk. This is particularly the case when the third party's bank account is domiciled in a country on the list of non-cooperative countries and territories. In addition, certain payment methods, such as cash settlements, cross-border payments and payments made on presentation of non-itemized invoices, may constitute risk factors when assessing the third party's level of risk.

If the third party is not based in France, or if the service is provided abroad, the assessment must take into account the “country risk”, i.e. the country's vulnerability to the risk of corruption. This is assessed by reference to the list of countries under international financial sanctions published by the Organization for Economic Cooperation and Development (OECD)  monitoring reports on the implementation of the Convention on Combating Bribery of Foreign Public Officials in International business transactions in signatory countries, published investigations or indications of corruption in the public sector, or the third party's registration in a non-cooperative State or in a country with non-equivalent legislation, which can be defined as a risk factor when assessing the third party's level of risk.

Finally, the third party's behavior must be taken into account in the risk assessment. The fact that the third party refuses to provide, or delays in providing, the information or documents requested may be considered a risk factor when assessing the third party's level of risk.

AFA recommendations 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.

Compliance

45. Risk assessment

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Les notions juridiques connexes

45. Risk assessment

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Les notions juridiques connexes

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