François Valérian, member of the International Board of Transparency International, writes about the development, design, remit, and record to-date of France’s nascent anti-corruption agency.
The Agence Française Anti-corruption (French Anti-Corruption Agency, AFA) was created by a 2016 law voted under the then French Finance Minister’s initiative and known as “Sapin II Law”, the major law passed a few years after the Cahuzac scandal which saw a finance minister’s resignation for tax evasion. The AFA is headed by a magistrate appointed by the President of the Republic for a non-renewable six-year term.
The AFA’s missions are of advice and assistance, and of control. The overall goal is to promote a culture and practices of anti-corruption prevention in the economic world, as provided for by the Sapin II law.
With respect to advice and assistance, AFA helps private and public organizations, in France and abroad, to prevent and detect acts of corruption. It receives information related to breaches of probity. It publishes guides on various subjects such as public procurement or guidelines on gifts and invitations.
With respect to control, AFA controls the respect of legal obligations and monitors judiciary decisions relative to preventive measures. AFA controls companies with more than 500 employees and a turnover of more than €100 million, as well as public institutions. It has the power to sanction companies, not public institutions.
The control concerns the respect of the 8 obligations imposed by the law:
- Elaboration of a code of conduct
- Implementation of an internal alert system
- Creation of a risk map
- Evaluation of customers and suppliers
- Implementation of an internal or external accounting control procedure
- Training of managers and staff
- Implementation of a disciplinary system
- Implementation of an internal control and evaluation system for the measures adopted
In the event of failure to implement these obligations, the AFA director may issue a warning or refer the case to the AFA’s independent Sanctions Committee.
The Sanctions Committee may:
- ask the company to adapt internal compliance procedures, according to the recommendations it addresses to them, within a period it sets below 3 years
- Impose a pecuniary sanction of an amount below 200,000 € for individuals and 1 million € for legal entities
- Order the publication of its decision
AFA also monitors judiciary decisions relative to preventive measures. It is now possible under French law to settle a judiciary procedure. The public prosecutor may enter into an agreement with a legal entity implicated or indicted for corruption, undue influence or tax fraud laundering. The agreement ends the judiciary proceedings. Under the agreement, the convicted party has to pay a fine, to indemnify any identified victims and to implement, under AFA’s control, a compliance program for a maximum period of three years. Such compliance programs may also be imposed by a judge independently from a settlement. The compliance program is designed to ensure the existence and implementation of measures and procedures intended to prevent the repetition of acts of corruption or trading in influence. The program is carried out under the supervision of the public prosecutor to whom AFA must report at least once a year. AFA informs the public prosecutor of any difficulties in the development or implementation of the compliance program and submits a report to the public prosecutor at the end of the program. An example of a compliance program monitored by AFA is the one of Airbus as required by the 2020 settlement.
Since AFA was created, 125 controls and reviews have been initiated; two thirds on private sector and one third on public sector. Off those 125 controls and reviews, 11 were related to judiciary decisions.
In 2020, 300 reports were sent to AFA. Out of all these reports, nine were considered as containing information useful to investigative or judiciary authorities and were sent to them.
AFA’s sanctions committee has pronounced two decisions only since 2017. In one of them it did not follow the AFA and no sanction was decided. In the other one a company which was kept anonymous was required to update its code of ethics. This other decision made however clear that the Sapin II provisions were mandatory for all companies concerned.
To carry out its missions, AFA has 57 employees. AFA’s main mission is to promote anti-corruption prevention in private and public organizations. AFA considers that top management commitment is very uneven from a company to another, a diagnosis which will not surprise us. A number of reports AFA receives come from organizations controlled by it. The guides published by AFA are of good quality. The work of the sanctions committee is obviously disappointing.
In conclusion, AFA does not investigate or prosecute corruption but promotes and controls the prevention of it.
The French public structures to combat corruption also include the Haute Autorité pour la Transparence de la Vie Publique (High Authority for the Transparency of Public Life, HATVP), created in the immediate aftermath of the Cahuzac case and whose mission concerns the public sector, with reception and partial publication of the declarations of interests and assets of a number of elected persons or lobbyists, as well as verification of newly appointed ministers’ tax declarations. Lastly, the Parquet National Financier (Financial Prosecutor’s Office, PNF) is the investigative and prosecuting authority in corruption affairs. It is by far the most powerful of those structures, although it suffers from restricted financial and human resources and is not independent from the government.