Search for:

Anti-Corruption Risk Map – France

Primary anti-bribery legislation and enforcement agencies

Criminal Code

Prohibits active and passive bribery of French and foreign and public officials and active and passive private bribery

Investigating agency: Central Office for the Fight against corruption and financial and tax offenses (Office central de lutte contre la corruption et les infractions financières et fiscales, “OCLCIFF“) / French Judicial Police1

Prosecuting agencies: French State Prosecutor / State Financial Prosecutor

Offenses

Bribing French Public Officials (Articles 433-1,1° and 432-11,1° of the French Criminal Code)

Bribing Foreign Public Officials (Articles 435-1 and 435-3 of the French Criminal Code)

Private Bribery (Articles 445-1 and 445-2 of the French Criminal Code)

A person is guilty of an offense of active bribery of a French or foreign public official if:

  • he or she proffers, without any right, at any moment, directly or indirectly, offers, promises, gifts, presents or any other advantage,
  • to a person who is a French public official or a public official in a foreign country or in an international public organization, i.e., (i) holding a public elected office; (ii) vested with public authority; or (iii) discharging a public service mission,
  • to perform or not perform (or for having performed or not performed) any act within his or her occupation or position, or office, or facilitated by his or her occupation, position or office.

Requesting or accepting such advantages is further constitutive of a criminal offense of passive corruption of a French or foreign public official or an official of an international public organization.

A person is guilty of an offense of active bribery of a private person, if:

  • he or she proffers, without any right, at any moment, directly or indirectly, offers, promises, gifts, presents or any other advantage,
  • to a person who is not a public official and who, within a professional or social activity, occupies a management position or works for any person or organization,
  • to perform or not perform (or for having performed or not performed) an act within his or her activity or occupation, or facilitated by his or her activity or occupation, in violation of his or her legal, contractual or professional obligations.

Requesting or accepting such advantages is further constitutive of the criminal offense of passive corruption of a private party.

There are no available defenses: Any advantage given with a corrupt intent is considered a bribe under French law. In practice any advantages, irrespective of the context in which they are given, ought to be reasonable and proportionate, consistent with customary practices, for the sole benefit of the intended beneficiary (i.e., not extended to persons other than the business person directly concerned), not meant to obtain anything in return, justified by a valid business reason and legally acceptable for the beneficiary.

Corporate liability arises under Article 121-2 of the French Criminal Code for criminal offenses committed on behalf of legal persons by one of their representatives or bodies. The liability of a legal person may therefore arise out of offenses committed by their collegial bodies such as the board of directors and the supervisory board, or individual legal representatives. Individual representatives include, among others: (i) directors, managers, general managers, presidents, etc., who are vested, by the law or the bylaws, with the power to administrate, manage and control the entity; and (ii) de facto directors or managers, but also persons, vested with delegation of powers (including employees) or acting within a specific mission for the company.

Extraterritorial application (Articles 113-2, -6, -7 of the French Criminal Code): Yes, when conduct occurs:

  • wholly or partly within France, that is, when at least one of the constituting elements of the offense took place in France;
  • wholly outside France if the offender was a French citizen; if the offense constitutes a misdemeanor (délit), it is further required that the country in which the offense is committed also prohibits the conduct; no such condition is required for felonies (crimes)2;
  • wholly outside France if the victim is French and provided further that the offense constitutes a misdemeanor (délit) that is punishable by a prison sentence or a felony (crime).

Penalties

  • For an individual: Up to 10 years in jail; fines of up to EUR1 million (alternatively, the amount of the fine may also be set at twice the proceeds of the offense); prohibition from exercising civic, civil and family rights; prohibition from exercising a public function or from exercising a professional or social activity within which the offense was committed; publication of the decision; confiscation of the object that was used in or intended for use in committing the offense, or the proceeds of the offense; prohibition from staying on the French territory for foreigners3
  • For legal persons: Fines up to EUR5 million (alternatively, the amount of the fine may also be set at twice the proceeds of the offense); prohibition from operating, directly or indirectly, one or several professional or social activities within which the offense was committed; being placed under judicial supervision; closing of the establishment that was used to commit the offense; debarment from public procurement; prohibition from proceeding with a public tender offer or from making an initial public offering; prohibition from issuing a check a payment; confiscation of the object that has been used in or intended for use in committing the offense, or the proceeds of the offense; publication of the decision4
  • Any person, whether an individual or a legal person, can face civil liability if the following three conditions are met:
    • Personal and direct damage of the victim
    • Fault of the author
    • Causal link between the fault and the damage suffered.

In case of corruption related offenses, the existence of a personal damage and link between the damage and the fault are particularly difficult to establish.

 

1 A bill of law relating to transparency and modernization of economic life that is expected to be debated in French Parliament in 2016 contemplates the creation of a national anti-bribery agency vested with wide-reaching investigatory and sanctioning powers. 2 A bill of law relating to transparency and modernization of economic life that is expected to be debated in French Parliament in 2016 contemplates removing the requirement of dual criminality of the conduct in case of bribery of foreign public officials. 3 These are maximum penalties applicable to public sector bribery, lower imprisonment sentence and fines are set out for the offense of private bribery. 4 These are maximum penalties applicable to public sector bribery, lower fines are set out for the offense of private bribery.

 

This list is to be used as a guide only. It is intended to provide high-level information regarding the primary laws in the specified countries in relation to anti-bribery and anti-corruption laws. Please refer to the relevant legislation for detailed information and to ensure that the information contained in this guide is up-to-date, and refer to the relevant Baker & McKenzie contact for the jurisdiction for specific advice.