Despite numerous recommendations made by the Organization for Economic Cooperation and Development, France still has several more improvements to make when it comes to combating the bribery of foreign public officials involving French companies.
In the OECD’s follow-up report in response to the progress France has made to the Working Group's “Phase 3 Report and Recommendations,” the Working Group noted that, of the OECD’s 33 recommendations, the group deemed four to be fully implemented; 17 partially implemented; and 12 recommendations remained non-implemented.
Since Phase 3, France has opened 24 new procedures involving the bribery of foreign public officials, but no legal person has yet been convicted of a foreign bribery offense, the report stated. “Despite the increased volume of ongoing procedures, the enforcement of the foreign bribery offense still falls far short of the expectations expressed by the Working Group during Phase 3, given both the size of the French economy and the exposure of French companies to the risk of foreign bribery,” the report stated.
The Working Group also expressed disappointment that France has not repealed, as recommended, dual criminality, in which a country cannot prosecute a crime if the wrongdoing isn't illegal in the country where it happened. “Nor has the definition of ‘foreign public official’ been clarified,” the report stated.
The Working Group also noted that further clarification is needed by French authorities regarding requirements for the criminal liability of legal persons for acts of bribery committed by an intermediary. Furthermore, the OECD recommended that training efforts to raise awareness among French judicial authorities on enforcing the criminal liability of legal persons in foreign bribery cases should be intensified.
In Phase 3, the Working Group expressed concern that the three-year statute of limitations from the date on which the bribery offense was either committed or discovered was not enough time for investigation and prosecution. France, however, disagreed and took no action to implement this recommendation.
The OECD did note some positive elements in its review of France. For example, prosecution in the wake of complaints by victims of foreign bribery offenses is now possible with respect to acts that are committed entirely or partially in France. Anti-corruption groups also were given the right to file civil-party claims.
The Working Group also praised the establishment of a National Financial Prosecutor tasked with pursuing foreign bribery cases. The Central Office for the Fight against Corruption and Financial and Tax Offenses (OCLCIFF) is now in charge of investigating foreign bribery cases.
With regard to accounting rules, external auditing, and corporate compliance programs, the Working Group said it welcomed the adoption in April of a circular clarifying the scope of external auditors’ obligation to report criminal acts committed by foreign subsidiaries of companies they audit. “France must, however, pursue its efforts to raise the awareness of French companies,” the report stated.
Based on France’s failure to adequately implement many of the Working Group’s recommendations, the OECD issued a formal declaration in October that France was not sufficiently in compliance with the Anti-Bribery Convention and the 2009 recommendations. “Another purpose of this declaration,” the report stated, “was to encourage France to pursue its reform efforts to bolster its arsenal against foreign bribery.”