1. Bribery in the home (private to public)
1.1 The Legal Environment
Bribery of French public officials is prohibited under Articles 433-1, 1 (active bribery, i.e., bribery perpetrated by the person bribing a public official) and 432-11, 1 (passive bribery, i.e., bribery perpetrated by the person bribing a public official).
1.2 What does bribery mean?
Bribery can be committed by public officials who seek or accept bribes, as well as private individuals who attempt to corrupt a public official.
Bribery is defined as the act of offering, without any right, at any time, directly or indirectly, offers, promises, gifts, presents, or other benefits to entice a public official to perform or not perform (or to reward a public official for performing or not performing) any act within his or her occupation, position, or office, or facilitated by his or her occupation, position, or office. Passive bribery occurs when someone accepts or requests a bribe, whereas active bribery occurs when someone offers the bribe.
1.3 What does it mean to be a public official?
Any person who: I holds a public elected position; (ii) is vested with public authority; or (iii) is performing a public service mission is referred to as a “public official.”
1.4 Bribery’s Consequences
(a) For the individuals involved in either active or passive bribery
Individuals who bribe public authorities face the same penalties as public officials, according to the French Criminal Code (Articles 433- 1, 1; 433-22 and 433-23; 432-11, 1; and 432-17). The following are the penalties:
Up to ten years in prison
A fine of up to EUR 1 million may be imposed (alternatively, the amount of the fine may also be set at twice the proceeds of the offense)
Prohibition of exercising civil, civic, and familial rights (for up to five years)
Prohibition from performing official functions or engaging in the activity in which the infraction was committed (for up to 10 years or indefinitely).
Prohibition from practicing a commercial or industrial profession, or directing or controlling, directly or indirectly, an industrial or commercial company (for up to 15 years or forever).
The sum or object received by the offender is confiscated.
The decision is made public.
If the criminal informs the administrative and judicial authorities of the offense and as a result causes the offense to be ended or the other perpetrators or accomplices to be found, the jail term may be reduced by half (Articles 433-2-1 and 432-11-1 of the French Criminal Code).
(b) In the instance of active bribery, for the company/legal entity
The following punishments are established by the French Criminal Code (Article 433-25):
Fines of up to EUR 5 million are possible (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 more professional or social activities in which the infraction was committed (for up to five years).
Being subjected to judicial oversight (for up to five years)
Closing the legal entity’s facilities used to perpetrate the offense (for up to five years).
Prohibition from bidding on public contracts (for up to five years)
Prohibition of proceeding with a public tender offer or making an initial public offering (for up to five years).
Issuing a cheque or using a credit card is prohibited (for up to five years).
Confiscation of the object used or planned to be used in committing the crime, as well as the proceeds of the crime
The decision is made public.
A new criminal settlement procedure (convention judiciaire d’intérêt public) was introduced in Article 41-1-2 of the French Criminal Procedure Code by a law enacted on November 9, 2016 (No. 2016-1691) pertaining to transparency, anti-bribery, and economic modernisation (the “Sapin II Law”). This criminal settlement procedure, which is modeled after the FCPA-style deferred prosecution agreements, allows companies suspected of corruption or other related offenses to avoid prosecution by entering into an out-of-court settlement agreement, which is proposed by the public prosecutor and approved by a French court. Both or any of the following will be required by the agreement:
I Payment of a fine (limited to 30% of the company’s three-year trailing average annual income and calculated based on the proceeds of the offense), plus damages to the victim and certain expenditures incurred by the new French Anti-Corruption Agency in the course of its work.
For a period of three years, the French Anti-Corruption Agency will supervise the implementation of an internal compliance program.
A judge must authorize any fine and/or compliance program in a public hearing. The settlement agreement, as well as the amount of the fine, must be made public on the Anti-Corruption Agency’s website. Charges will be withdrawn in exchange, and the corporation will not be obliged to admit any liability. Individual offenders will face criminal charges regardless of whether the company participates into a deferred prosecution agreement.
1.5 Contributions from politics
Contributions to political parties are governed under Law No. 88-227, as amended, enacted on March 11, 1988. Contributions to political parties are generally limited to natural individuals and are capped at EUR 7,500 per year. Since 1995, contributions to political parties by legal organizations have been outlawed.
1.6 Hospitality expenses are subject to certain restrictions (gifts, travel, meals, entertainment, amongst others)
Hospitality expenses are not subject to any quantitative or qualitative restrictions under the French Criminal Code.
It’s worth noting that there are no de minimis sums, safe harbors, or government rules that define when or under what conditions an act of hospitality is considered a bribe.
Under French law, any benefit given with the goal to defraud is considered a bribe. If circumstances suggest unethical intent, even minor payments may be considered bribes. Additionally, the giving of little presents on a regular basis could indicate a corrupt motive.
Any benefits should be reasonable and proportionate, consistent with customary practices, for the sole benefit of the intended beneficiary (i.e., not extended to anyone other than the business person directly involved), not intended to obtain anything in return, justified by a valid business reason, and legally acceptable for the beneficiary, regardless of the context in which they are given. In practice, the courts consider whether the benefit was supplied in order to entice the public official to perform (or stop from performing) or reward him for performing (or refraining from performing) an act related to his or her role. A quid pro quo arrangement is unlawful unless otherwise indicated.
Whether or whether a hospitality expense qualifies as a bribe must be evaluated on a case-by-case basis, taking into account all of the facts and circumstances.
2. Bribery in the home (private to private)
2.1 The Legal Environment
Articles 445-1 (active bribery, i.e., bribery committed by the person bribing a public official) and 445-2 (passive bribery, i.e., bribery committed by the person bribing a public official) of the French Criminal Code regulate bribery (passive bribery, i.e., committed by the person offering a bribe).
2.2 What is bribery in the private sector?
Bribery is defined as offering, without any right, at any time, 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, in order to get such private party to perform or not perform (or for having performed or not performing) (or for having performed or not performing). Requesting or accepting such benefits is also a form of passive corruption of a private party, whereas the individual who offers the bribe is charged with active bribery of a private party.
2.3 Private bribery consequences
(a) For people implicated in situations of active or passive bribery (Articles 445-1, 445-2, and 445-3 of the French Criminal Code), the following consequences apply:
A sentence of up to five years in prison is possible.
Fines of up to EUR 500,000 are possible (alternatively, the amount of the fine may also be set at twice the proceeds of the offense)
Prohibition of exercising civic, civil, and familial rights (for up to five years)
Prohibition from performing official functions or engaging in the activity in which the infraction was committed (for up to five years or indefinitely).
Prohibition from practicing a commercial or industrial profession, as well as directing or controlling, directly or indirectly, an industrial or commercial company (for up to 15 years or forever).
Confiscation of the object used or planned to be used in committing the crime, as well as the proceeds of the crime
The decision is made public.
(b) In cases of active or passive bribery (Article 445-4 of the French Criminal Code), for the company/legal entity:
Fines of up to EUR 2.5 million are possible (alternatively, the amount of the fine may also be set at twice the proceeds of the offense)