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

As part of an undertaking's internal regulations , the code of conduct is applicable and enforceable against all employees . It is intended to apply wherever the undertaking operates, in France and abroad. While it is possible for a code of conduct to apply to all entities of the same undertaking, such a choice must not hinder its effectiveness. When an undertaking operates abroad, the French anti …

Enforceability

As part of an undertaking's internal regulations , the code of conduct is applicable and enforceable against all employees . It is intended to apply wherever the undertaking operates, in France and abroad. While it is possible for a code of conduct to apply to all entities of the same undertaking, such a choice must not hinder its effectiveness. When an undertaking operates abroad, the French anti-corruption agency (Agence française anticorruption AFA) recommends that it be adapted for each entity or operating unit, particularly when its activities are varied and exposed to specific risks of corruption, in order to take account of local legal specificities . In short, it must be enforceable, by any means, against all undertaking personnel, as well as employees who work with the undertaking and are subject to its internal regulations .

Article 17, II, 7° of the Sapin II Law requires the governing body to implement a disciplinary system enabling employees to be punished for breaches of the code's provisions. Non-compliance with the provisions of the anti-corruption code of conduct, which has been incorporated into the undertaking's internal regulations, constitutes a breach that may be construed as misconduct, justifying the imposition of a disciplinary sanction . As long as the facts are proven and their gravity justifies it, the governing body is not obliged to wait for a criminal ruling before implementing these sanctions . The implementation of sanctions can be based on the findings of a detailed internal investigation, which can rigorously establish the materiality of the facts of which the person concerned is accused.

Furthermore, while the code of conduct is not, de facto, enforceable against third parties, the AFA recommends that it be communicated to them, subject to the necessary adaptations to protect the organization's confidentiality, and that compliance with this document be imposed on them, by means of a contractual clause . In such a case, breach of the obligations set out in the code is likely to justify termination of the established commercial relationship without notice .

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, published in the JORF of 12 January 2021, pts 39 and 168.

CA Aix-en-Provence, 28 April 2017, LawLex202300011956JBJ, holding that a undertaking's Director of Operations France, who continued to work with a company responsible for providing him with information on competitors' bids for 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 Paris, 11 October 2017, LawLex202400002717JBJ, considering justified the warning received by an employee who received a copy of the undertaking's internal regulations and code of conduct, for lack of vigilance and failure to report a situation likely to present a risk and behavior reflecting non-compliance with internal procedures; CA Reims, 6 February 2019, LawLex202400002710JBJ, holding that an employee who accepts a trip offered by a supplier is in breach of the undertaking's internal code of conduct, justifying 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 the acceptance of substantial gifts from a client of the agency he managed constituted a breach by the employee of the code of conduct in force within the undertaking, which he had signed, likely to result in his dismissal.

CA Paris, 13 March 2019, LawLex201900000339JBJ; 24 March 2021, LawLex202100000923JBJ.

Compliance

36. Enforceability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

36. Enforceability

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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