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

Ethics is one of the main objectives of a commitment to CSR. It represents the moral foundation on which CSR is built. Fighting corruption is a key ethical and governance issue for companies, which must demonstrate their full willingness to act honestly and responsibly. Article 2 of the Council of Europe's Civil Law Convention on Corruption of 4 November 1999 defines corruption as “the act of soliciting, offering, giving or accepting, directly or indirectly, an unlawful commission or other undue advantage or the promise of such an undue advantage which affects the normal exercise of a function or the required behavior of the recipient of the unlawful commission, undue advantage or promise of such an undue advantage”. According to the French anti-corruption agency, Agence française anti-corruption (AFA), corruption is “the act by which a person invested with a specific function, whether public or private, solicits/proposes or accepts/grants a gift, an offer or a promise, with a view to performing, delaying or omitting to perform an act which falls, directly or indirectly, within the scope of his or her functions‘ . According to Transparency International , bribery can be likened to an “abuse of power for private ends”. The benefits resulting from bribery and corruption can take the form of both financial and non-financial gain. Corruption is, in effect, “the offer or receipt of any gift, loan, fee, reward or other benefit as an inducement to do something that is dishonest, illegal or a breach of trust, in the conduct of the undertaking's business" .

In France, since the 2016 law on transparency, action against corruption and the modernization of economic life, known as Sapin II  large companies  have been required to implement an anti-corruption system and ensure that their business partners, whatever their size, have adopted anti-corruption measures.

In international law, the United Nations Global Compact, adopted in 2004, commits participants not only to avoid bribery, extortion and other forms of corruption, but also to proactively develop concrete policies and programs to combat corruption internally and within their supply chains. Companies are also encouraged to work collectively with civil society, UN agencies and governments to achieve a more transparent global economy. The pact suggests that its members consider the following elements in the fight against corruption:

- introducing anti-corruption policies and programs within their organizations and business activities;

- reporting on anti-corruption efforts in the annual progress report, and share experiences and best practices by presenting concrete examples and cases;

- joining with peers in the same sector and other stakeholders to intensify anti-corruption efforts, level the playing field and create a level playing field for all.

Similarly, the OECD Guidelines issue a set of recommendations to companies that they must not, directly or indirectly, offer, promise, grant or solicit illicit payments or other undue advantages in order to obtain or retain business or other improper advantage. Nor may they be solicited for an illicit payment or other undue advantage. In particular, companies :

- should not offer to pay public officials or employees of their business partners a fraction of a contractual payment, nor should they accept such requests for payment; they should not use sub-contracts, orders or consultancy contracts to award payments to public officials, employees of their business partners, or their relatives or business associates ;

- should ensure that the remuneration of agents is adequate and linked only to legitimate services; where appropriate, they should keep a list of agents employed in transactions with public bodies and public enterprises, and make it available to the competent authorities;

- should improve the transparency of their activities in the fight against bribery and extortion; these measures could include public commitments against bribery and extortion, and disclosure of the management systems adopted by the company to fulfill these commitments; the company should also encourage openness and dialogue with the public in order to promote awareness and cooperation in the fight against bribery and extortion;

- should make employees aware of measures to combat bribery and extortion, and promote employee compliance with these provisions by ensuring proper dissemination of these measures and by setting up training programs and disciplinary procedures;

- should adopt management control systems designed to discourage bribery and corrupt practices, and adopt accounting, tax and auditing practices designed to prevent the use of “off-the-books” accounting or secret accounts, or the creation of documents that do not properly and honestly reflect the transactions to which they relate;

- should not make any illegal contributions to candidates for public office or to political parties or other political organizations; all contributions must comply fully with disclosure standards and be declared to company management.

Finally, in 2009, the OECD issued an anti-bribery recommendation  that calls for:

- promote a holistic approach to the fight against foreign bribery through new measures to strengthen awareness, training and detection of key government agencies, including foreign representations, financial intelligence units, tax authorities and official development assistance agencies;

- strengthen enforcement of foreign bribery laws, including proactive detection and investigation of transnational bribery, more effective international cooperation between law enforcement authorities and cooperation in multi-jurisdictional cases;

- tackling the demand side of cross-border cases by calling on countries to tackle the solicitation and acceptance of bribes, and to better support companies at risk of bribe solicitation;

- introduce provisions on the principles and key features of out-of-court settlements;

- include detailed provisions to ensure full and effective protection of whistle-blowers in the public and private sectors;

- encourage countries to promote the development of internal control, ethics and compliance programs or measures to prevent and detect foreign bribery.

Opinion on the recommendations of the French anti-corruption agency to help public and private legal entities prevent and detect bribery, influence peddling, concussion, illegal taking of interest, misappropriation of public funds and favoritism, in its 2017 version.

Transparency International is a Germany-based international non-governmental organization dedicated to fighting corruption in the world's governments and governmental institutions: https://transparency.eu/about/

https://unglobalcompact.org/what-is-gc/mission/principles

Law No 2016-1691 of 9 December 2016 relating to transparency, the fight against corruption and the modernization of economic life, JORF No. 0287 of 10 December 2016.

Large Undertakings are those that cumulatively reach the thresholds of EUR 100 million in turnover and have more than 500 employees.

Recommendations for further combatting of the Council (OECD) for further combating bribery of foreign public officials in international business transactions.

132. Anti-corruption measures