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Phase 3 Report on Implementing the Oecd Anti-Bribery Convention in France

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Phase 3 Report on Implementing the Oecd Anti-Bribery Convention in France PHASE 3 REPORT ON IMPLEMENTING THE OECD ANTI-BRIBERY CONVENTION IN FRANCE October 2012 This Phase 3 Report on France by the OECD Working Group on Bribery evaluates and makes recommendations on France’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 2009 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions. It was adopted by the Working Group on 12 October 2012. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. 2 TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................................. 5 A. INTRODUCTION ................................................................................................................................ 7 1. The on-site visit .................................................................................................................................... 7 2. Outline of the report.............................................................................................................................. 8 3. Progress since the on-site visit .............................................................................................................. 8 4. Economic situation ............................................................................................................................... 8 (a) Economic structure ...................................................................................................................... 8 (b) International trade ........................................................................................................................ 8 (c) Situation of overseas territories ................................................................................................... 9 5. Cases of bribery of foreign public officials .......................................................................................... 9 (a) Convictions for active bribery of foreign public officials ........................................................... 9 (b) Number of proceedings initiated for the offence of active bribery of foreign public officials .. 10 (c) Closure, dismissal and acquittal ................................................................................................ 10 B. APPLICATION AND ENFORCEMENT BY FRANCE OF THE CONVENTION AND THE 2009 RECOMMENDATIONS .............................................................................................................................. 11 1. The offence of bribery of foreign public officials .............................................................................. 11 (a) Changes made to the offence since Phase 2 .............................................................................. 11 (b) Difficulties linked to key elements of the bribery offence ........................................................ 13 (c) Issues identified as requiring specific follow-up by the Working Group .................................. 15 (d) The distinction between bribery and trading in influence and the definition of misuse of corporate assets ...................................................................................................................................... 16 (e) Absence of a specific defence and small facilitation payments................................................. 18 2. The liability of legal persons .............................................................................................................. 20 (a) Rules and principles of liability ................................................................................................. 20 (b) Application of the liability of legal persons by the courts ......................................................... 21 (c) Raising awareness in the Public Prosecutor’s Office and the judiciary .................................... 25 3. Sanctions ............................................................................................................................................. 26 (a) Sanctions against natural persons .............................................................................................. 26 (b) Sanctions against legal persons ................................................................................................. 27 (c) Sanctions applicable under the procedure of appearance on prior admission of guilt (CRPC) . 29 4. Confiscation of the bribe .................................................................................................................... 30 (a) Applicable law ........................................................................................................................... 30 (b) Enforcement of seizure and confiscation measures ................................................................... 31 5. Investigation and prosecution of the foreign bribery offence ............................................................. 33 (a) Jurisdiction ................................................................................................................................ 33 (b) Principles of investigation and prosecution ............................................................................... 33 (b) Authorities responsible for investigations and prosecutions ..................................................... 41 (c) Means of investigation and prosecution .................................................................................... 44 (d) Statute of limitations .................................................................................................................. 50 6. Money laundering ............................................................................................................................... 51 (a) Standards of liability and enforcement ...................................................................................... 51 3 (b) Detection and reporting of suspicions of money-laundering linked to transnational bribery .... 52 7. Accounting rules, external audit and corporate compliance programmes ...................................... 54 (a) Accounting standards ................................................................................................................ 54 (b) External audit ............................................................................................................................. 54 (c) Internal controls, ethics and compliance programmes .............................................................. 55 8. Tax measures to combat bribery ......................................................................................................... 56 (a) Non-deductibility of bribes ........................................................................................................ 56 (b) Detection of bribes paid to foreign public officials ................................................................... 57 (c) Guidelines for tax agents ........................................................................................................... 57 (d) Administrative assistance and information-sharing in tax matters ............................................ 58 9. International co-operation: mutual legal assistance in criminal matters ............................................. 59 (a) Mutual legal assistance in France .............................................................................................. 59 (b) Protecting France’s fundamental interests in the context of MLA requests .............................. 61 10. Awareness-raising in the public and private sectors and reporting of acts of corruption ............... 61 (a) Awareness-raising in the public and private sectors .................................................................. 61 (b) Reporting suspicions of transnational bribery ........................................................................... 62 11. Public advantages ............................................................................................................................ 65 (a) Official development assistance ................................................................................................ 65 (b) Export credits ............................................................................................................................. 66 (c) Arms exports ............................................................................................................................. 66 (d) Public procurement .................................................................................................................... 67 C. RECOMMENDATIONS AND ISSUES FOR FOLLOW-UP ........................................................... 68 1. Recommendations of the Working Group ...................................................................................... 68 2. Follow-up by the Working Group ................................................................................................... 73 ANNEX 1 ...................................................................................................................................................... 74 PHASE 2 RECOMMENDATIONS OF THE WORKING GROUP
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