In a January 17 interview with the French news-magazine L’Obs, former French Prime Minister Bernard Cazeneuve argued that a European anti-corruption prosecutor is needed “to restore a balance, to correct the asymmetry of the Euro-Atlantic relationship in the fight against corruption from which European companies are currently suffering.”
In the interview, Cazeneuve — now a partner with the August Debouzy law firm specializing in compliance issues – stated that “it cannot be ruled out that in a context of rising protectionism under the Trump Administration, ‘compliance’ rules are also used to protect the economic and industrial interests of certain powers. Faced with such a reality, it would be very naive not to seek to protect our own interests!” At the same time, Cazeneuve said that “in a global economy, corruption is a long-term factor that impoverishes companies and distorts competition. Only the law can regulate what needs to be and create the conditions for a global level playing field. Preventing corruption in French companies is still the best way to protect them from the often intrusive procedures of U.S. prosecuting authorities.”
Cazeneuve explained that his proposal for a European anti-corruption prosecutor would require a European law on prevention and the fight against corruption. Noting that today there are “great disparities” between “certain Eastern European states” and other countries such as France, with its wide-ranging Sapin II legislation, he added that the Organisation for Economic Cooperation and Development’s (OECD’s) principles governing the fight against corruption must be the subject of a binding European directive. This directive would impose the same rules on all the countries of the European Union, based on the main recommendations or conventions drawn up by the OECD. This would allow the European prosecutor, whose competence is for the moment exclusively limited to the fight against fraud to European public funds, to also pursue international corruption cases.
In evaluating Cazeneuve’s arguments, it is necessary to look past the heated rhetoric of some French journalists (including Cazeneuve’s interviewer) that the United States “has been using its anti-corruption laws for several years to weaken some of Europe’s leading companies” and that its enforcement of the Foreign Corrupt Practices Act (FCPA) constituted a “great American judicial racket.” It is clear that – more than 20 years after the signing of the OECD Anti-Bribery Convention – there remains a vast disparity across the European Union (EU) in the scope and coverage of anti-corruption laws, and in the commitment of Member States to enforce those laws.
It is less clear, however, that a European anti-corruption prosecutor is needed because European companies “are suffering” from an “asymmetry of the Euro-Atlantic relationship” in combating corruption. The French Parquet National Financier (PNF) (Financial Prosecution Office), which began operations in 2014, is already demonstrating that it has the will and skill to pursue major corruption cases.
For example, last June, in the Société Générale FCPA case, the U.S. Department of Justice and the PNF reached the first coordinated resolution involving French authorities in a foreign-bribery case, including crediting the PNF with nearly $293 million to be paid to the PNF. One commentator wrote that the resolution “represents a remarkable evolution in anti-corruption cooperation and enforcement between U.S. and French authorities.” Moreover, as of April 1, 2018, the PNF reported that it had 487 ongoing cases, half of which involved “breaches of probity” such as corruption, influence-peddling, and misappropriation of public funds. Finally, since November 2017 the PNF has been making use of its authority under Sapin II to reach Conventions Judiciaires d’Interêt Public (CJIPs) (Judicial Agreement in the Public Interest), the equivalent of Deferred Prosecution Agreements, with various companies.
In addition, anti-corruption prosecutors’ offices in a number of other European have had notable successes in prosecuting foreign-bribery cases. Those include the United Kingdom Serious Fraud Office’s £497 million resolution with Rolls-Royce PLC, the Dutch Openbaar Ministerie’s $240 million resolution with SBM Offshore, and Munich prosecutors’ €81 million resolution with Airbus. Taken together, their actions vitiate the claim that there is a trans-Atlantic asymmetry in pursuing corruption.
Furthermore, the European Union (EU) already has the authority and infrastructure for multiple EU states to collaborate in investigating and prosecuting multinational corruption. In addition to Europol and Eurojust, which enable broad-ranging cooperation in investigating and prosecuting crimes in multiple EU states, Article 13 of the EU Convention on Mutual Assistance in Criminal Matters between EU Member States gives Member States the authority to establish Joint Investigation Teams (JIT), with multinational police staffing, for investigations that are “difficult and demanding . . . [and] hav[e] links with other Member States” or that involve “criminal offences in which the circumstances of the case necessitate coordinated, concerted action in the Member States involved.” Major corruption cases certainly involve one or both of those criteria.
Because of the continuing inconsistencies in anti-corruption laws across the EU, part of Cazeneuve ’s proposal – having the EU apply greater pressure than it has to date under the 1997 Convention on official corruption and the 2003 Council Framework Decision on private-sector corruption – could be useful in achieving greater legal conformity. But given the increasing capability of multiple EU states to prosecute corruption, the final part of his proposal – vesting the new European Public Prosecutor’s Office (EPPO) with authority to pursue international corruption – is premature at best. Because it was authorized in 2017, the EPPO itself acknowledges that it “is envisaged to take up its functions by the end of 2020.”
The EPPO deserves time to establish itself and to pursue its current mandate “to investigate, prosecute and bring to judgment crimes against the EU budget” (which can include fraud and corruption in some cases), before the EU imposes a broader mandate on it. Until then, France and other EU states with the laws and resources to combat corruption are more than capable of investigating major corruption effectively, whether on their own or in coordination with other countries – even the United States.
Jonathan J. Rusch is Principal of DTG Risk & Compliance, a consulting firm specializing in corporate-compliance issues, and Senior Fellow in the Program on Corporate Compliance and Enforcement at New York University School of Law.
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