The law of 9 December 2016 on transparency, the fight against corruption and the modernization of economic life (Sapin II Law) was voted by the Parliament in a context of shortcomings in the French anti-corruption system, given the large number of conventions at the international level.
The objectives of the Sapin II Law are thus to bring the France into line with international anti-corruption regulations, to allow French companies to avail themselves (take advantage) of it to avoid the risk of double punishment for the same offense, and to redirect the procedures to the French field of competence.
The main measures of the Sapin II Law
First, the Sapin II Law puts in place measures to fight corruption by creating the French Anti-Corruption Agency (AFA) including a Sanctions Commission. Thus, the fight against corruption and influence peddling gives rise to the implementation, by large companies, of measures and procedures, under the control of the AFA under of financial penalties.
The law provides for the establishment of a judicial agreement of public interest between the public prosecutor and a company accused of corruption, resulting in the payment of a fine of up to 30% of the turnover of this company and the establishment of a compliance program.
The Sapin II law also establishes a mandatory "say on pay" regime for companies listed on a regulated market. This plan consists of an annual approval, by the general meeting of shareholders, of the principles and criteria of the remuneration policy, in all its forms, before the general meeting decides, also annually, on the payments made in respect of the preceding financial year.
This law of 9 December 2016 also establishes an offence of trading in the influence of foreign public officials and promotes prosecutions in France. This offence, defined in Article 435-2 of the Criminal Code, is punishable by 5 years' imprisonment and a fine of €500,000 and the amount of which can be increased to double the profit made thanks to this offence.
The Sapin II law creates a legal status of whistleblower. The text thus includes the definition of whistleblower, but also puts in place the protection of this status. The law also specifies the conditions for reporting and revealing the alert. Finally, a set of rights common to all whistleblowers is put in place by the law of 9 December 2016.
The law sets up a compliance program for French companies with more than 100 million euros in turnover, and at least 500 employees.
The French Anti-Corruption Agency (AFA)
The AFA, created by the Sapin II law and replacing the Central Service for the Prevention of Corruption (SCPC), has the mission of monitoring compliance with the duty of vigilance in the fight against corruption, bribery, illegal taking of interest, embezzlement of public funds and favoritism (patronage), and influence peddling. In this logic of control, the AFA also has the possibility of sanctioning companies in the event of failure (breach) to comply with this duty of vigilance.
The AFA is headed by a magistrate, and composed of a strategic council and a sanctions commission. It has a mission of prevention, a duty to inform, a power of control and a power of sanction.
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