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 code of conduct must be designed in the light of the risks of corruption and influence peddling previously identified, assessed and prioritized by the risk map . It must be clear, unreserved and unequivocal , and written in terms that make it intelligible and accessible to non-specialists . Compliance with these requirements may involve translating the code into one or more foreign languages,  …

Content

The code of conduct must be designed in the light of the risks of corruption and influence peddling previously identified, assessed and prioritized by the risk map . It must be clear, unreserved and unequivocal , and written in terms that make it intelligible and accessible to non-specialists . Compliance with these requirements may involve translating the code into one or more foreign languages, to make it easier to understand for staff from foreign countries.

The Code sets out recommendations, obligations and prohibitions of a behavioral nature, designed to prevent the commission of acts likely to constitute corruption or influence peddling, accompanied by definitions and illustrations relating to concrete cases, in line with the risks specific to the company. It is recommended that the code be structured under headings corresponding to the different types of behaviour to be avoided, and that the disciplinary consequences of non-compliance be set out . The code of conduct must be accompanied by relevant illustrations based on concrete cases, and must not be limited to a compendium of best practices: it must also formulate prohibitions aimed, in the specific context of the undertaking concerned, at behaviors and practices that constitute breaches of probity . It must also describe the internal whistle-blowing system designed to receive reports of conduct or situations that run counter to its provisions , and mention the qualified position, whether compliance officer or compliance referent, responsible for answering any questions staff may have, and how to contact them .

While the AFA's recommendations consider that the name given by the undertaking is irrelevant , the Sanctions Committee recommends using the exact name given in the Sapin II Law, for greater simplicity, clarity and compliance with the spirit of the text .

The code of conduct may take the form of a single document, or be made up of several documents, as long as they form a coherent whole, clearly articulated and legible by staff, that each of the documents making it up is made easily accessible to all employees, and that they mention that they constitute the “code of conduct” required by the Sapin II Law . It may be integrated into an ethics plan, or any other document, with a broader scope than the strict fight against corruption , or refer to “policies/procedures” aimed at controlling high-risk behavior and helping to combat breaches of probity, such as provisions relating to gifts and invitations, sponsorship, lobbying, management of conflicts of interest, entertainment expenses, or concurrent activities. These documents, which are not part of the Code itself, are also based on risk mapping, and are subject to the imperatives of coherence, clarity, readability and accessibility .

Furthermore, since risk mapping and the code of conduct are correlated, when risk mapping is updated, the code of conduct must also be updated. To this end, the code of conduct must include an indication of its effective date . The code of conduct may also be updated following an AFA inspection, whose observations may result in the sanction envisaged by the Sanctions Committee being dropped. In fact, an undertaking which, after being audited, has applied itself to prescribing, within a governance charter, a code of conduct and a compliance guide, the behavior expected of its employees, by indicating, in particular, prescriptions aimed at prohibiting corruption, influence peddling, the abusive granting of gifts or various advantages, facilitation payments, conflicts of interest, as well as the rules to be observed in terms of fair competition and accounting procedures, which it is in the process of supplementing with new recommendations concerning cybersecurity risks, social inclusion to avoid breaches of probity, and country embargo issues, is no longer in breach of the requirements of Article 17 of the Sapin II Law .

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, pt 170.

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, pt 37.

AFA recommendations, pts 40, 166 and 173.

AFA, 7 July 2021, LawLex202200001309JBJ, concerning a code entitled “anti-corruption policy”.

AFA, 7 February 2020, LawLex202200001353JBJ; 7 July 2021, LawLex202200001309JBJ.

Compliance

35. Content

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

35. Content

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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