French authorities provide welcome guidance on French Deferred Prosecution Agreements

Written on 4 Oct 2019

The French Financial Prosecutor (PRF) and the French Anti-Corruption Agency (AFA) have issued common guidelines on the implementation of the Convention Judiciaire d’Intérêt Public (CJIP), or Judicial Public Interest Agreement.

What is the CJIP?

The CJIP is a recent transactional procedure, similar to the US Deferred Prosecution Agreement (DPA) between the PRF and a corporate entity in relation to matters of corruption, “influence peddling “, money laundering and related offences.

This new legal tool was introduced by the Law of 9 December 2016 on “transparency, combatting corruption and modernisation of economic life” (known as the “Sapin 2” law).

A CJIP allow proceedings to be stopped on payment of a reduced fine, which is limited to 30% of the average annual turnover of a corporate entity, and when relevant, the implementation of an AFA-supervised compliance programme to prevent and detect corruption, and compensation where possible for the victim.

Who can enter into a CJIP?

To be eligible for a CJIP, a corporate entity must:

  • have not faced any previous sanctions for corruption or bribery (this assessment may be mitigated by factors such as the scope or the age of the offence); and
  • have cooperated in the criminal investigation, including through the voluntary self-reporting of the offences and relevant facts in a reasonable time, and the implementation of an internal investigation by the company itself.

The corporate entity should also have:

  • sufficient evidence of corruption or bribery; and
  • implemented an anti-bribery compliance programme, as provided by article 17 of Sapin II (which establishes eight measures to prevent breaches of probity). Where a corporate entity is not required by the law to have a compliance program, but has nevertheless voluntarily implemented such a program, this will be considered favourably by the PRF in deciding whether to enter into a CJIP.

How can a corporate entity negotiate with the PRF?

It is the PRF that proposes the use of a CJIP to the corporate entity; in practice, an informal discussion on the CJIP is possible . The Guidelines envisage the corporate entity entering into informal discussions with the PRF by “encouraging legal persons to adopt a cooperative approach towards the judicial authorities, as well as with AFA”.

The criteria discussed above for being eligible to enter into a CJIP – efficient and complete cooperation, relevant and in-time self-reporting, voluntary implementation of an anti-bribery program – are also mitigating factors in setting the fine.

How are judicial and internal investigations articulated?

If the internal investigations were conducted prior to the disclosure of offences to the PRF and prior to criminal investigation, the corporate entity must preserve evidence. If the PRF initiated judicial investigations before internal investigations, the corporate entity can still cooperate by conducting parallel investigations and/or communicating relevant information to the PRF, without any obstruction.

How are these proceedings coordinated with other jurisdictions?

Authorities from different countries may prosecute the corporate entity for the same facts, something which is provided for by the CJIP regime. Where that is case:

  • the financial penalty can be discussed between the PRF and the foreign authority in order to achieve a repartition of the fines paid by the corporate entity (see the example discussed below); and
  • the Guidelines state that the AFA must be appointed as the unique monitoring body when the corporate entity has its registered office in France or carry on all or part of its economic activities on French territory.

Regulatory cooperation

The French bank Société Générale faced double prosecution by the PRF and the US Department of Justice (DoJ) for acts of active bribery of foreign public officials. It is the only settled case yet where a corporate entity has concluded a CJIP with the PRF as well as a DPA with the DoJ for the same facts.
Both authorities shared their evidence and agreed to reach a coordinated agreement of their respective investigations. The authorities also agreed to share half the amount of penalties paid by Société Générale.

The DPA states , in relation to the question of monitoring the compliance programme that “the company’s significant remediation which, together with the company’s risk profile and ongoing monitoring by the “Agence Française Anticorruption”, resulted in the Department determining that a monitor was not necessary in this case.”.

In this case, the DoJ considered that the monitoring by the AFA was sufficient, given that Société Générale has its registered office in France.

What are the benefits of entering into a CJIP?

According to the AFA and the PRF, a CJIP is valuable for companies because it offers:

  • The end to prosecution proceedings against the legal person.
  • The absence of a guilty plea, meaning the corporate entity is not excluded from national public contracts.
  • The speed of proceedings which mitigates certain risks.
  • The facilitation of parallel transactional agreements when the legal person is being prosecuted by several authorities.
  • A lower fine than the one which could be ordered by the judge, in the absence of a CJIP.

The CJIP does, though, have drawbacks. The legal representative and executives cannot be protected or be a party to the French DPA , so may be prosecuted. Corporate entities should also be aware that documents and information provided by the company or lawyers before any offer from the PRF are not covered by legal privilege.