Tag Archives: Alexandre Bisch

French Authorities Publish Guide on Anti-Corruption Internal Investigations

by Bruce E. Yannett, Erich O. Grosz, Alexandre Bisch, and Fanny Gauthier

Photos of the authors

From left to right: Bruce E. Yannett, Erich O. Grosz, Alexandre Bisch, and Fanny Gauthier (photos courtesy of Debevoise & Plimpton LLP)

On March 14, 2023, France’s main anti-corruption authorities, the French Financial National Prosecutor (the “PNF”) and the French Anti-Corruption Agency (the “AFA”), published a 38-page document providing best practices for companies conducting anti-corruption internal investigations in France (the “Guide”).[1]

Although it has no normative value, the Guide is generally helpful for companies that have to conduct internal investigations as part of their mandatory French-style compliance programs and those who conduct internal investigations in anticipation of a potential French-style deferred prosecution agreement (the “CJIP”).

We describe below what we consider to be the main aspects of the Guide. When relevant, we have also added some comparisons and comments from a U.S. perspective.

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France Moves to Boost Its White Collar Enforcement

by Antoine F. Kirry, Alexandre Bisch, Aymeric D. Duoulin, Fanny Gauthier, and Karolos Seeger

On July 7, 2021, a French National Assembly Committee led by MPs Raphaël Gauvain and Olivier Marleix, published a long-awaited 180-page evaluation report about France’s anti-corruption law of December 9, 2016 (the so-called “Sapin II Law”)[1]. While recognizing the significant progress made by France in its fight against corruption and tax fraud over the last five years, MPs suggest further strengthening the existing legal framework. Their 50 recommendations cover various topics, including the French-style deferred prosecution agreement; the self-reporting of corporate crimes; corporate criminal liability criteria; the introduction of a new pre-trial guilty plea; French extra-territorial enforcement of corruption crimes; and the role of the French anti-corruption agency. We provide below the main highlights of the report.

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France Makes U-Turn on Corporate Successor Criminal Liability

by Antoine F. Kirry, Alexandre Bisch, Aymeric D. Dumoulin, and Ariane Fleuriot

On November 25, 2020, the French Court of Cassation (France’s Supreme Court) issued a landmark decision[1] whereby public limited liability companies may now be held criminally liable for the prior criminal conduct of the companies they acquire through “mergers by acquisition.”[2] This decision departs from existing case law. It will likely create an increased post-merger criminal liability risk for acquiring companies and a correlative incentive to enhance their pre-merger due diligence efforts.

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Schrems II: Privacy Shield Invalid and Severe Challenges for Standard Contractual Clauses

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Yesterday, the Court of Justice of the European Union (CJEU), the EU’s highest court, invalidated the EU-U.S. Privacy Shield for cross-border transfers of personal data.  The CJEU’s decision also cast significant doubts over whether companies can continue to use the European Commission-approved Standard Contractual Clauses (SCCs) to transfer EU personal data to the U.S., or to other jurisdictions with similarly broad surveillance regimes.  The CJEU’s lengthy decision is here and its short-form press release is here (PDF: 319.62 KB).

What does this mean for organizations that rely on Privacy Shield or SCCs?  History suggests that privacy enforcement authorities in the EU may hold their fire while efforts are made to come up with a replacement system for data transfers.  EU authorities hopefully will clarify their enforcement intentions soon.  In any event, organizations that have relied on Privacy Shield will have to turn immediately to considering what practical alternatives they might adopt.  U.S. government authorities will also have to turn to the knotty question of what data transfer mechanisms might ever satisfy the CJEU, given persistent EU concerns about U.S. government surveillance of personal data.

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The EPPO and International Co-Operation –– New Kid on the Block

by Karolos Seeger, Jane Shvets, Robin Lööf, Alma M. Mozetič, Martha Hirst, Antoine Kirry, Alexandre Bisch, Ariane Fleuriot, Dr. Thomas Schürrle, Dr. Friedrich Popp, Dr. Oliver Krauß

The European Public Prosecutor’s Office (“EPPO”) is a new European Union body responsible for investigating and prosecuting criminal offences affecting the EU’s financial interests in 22 of its 28 Member States.[1] The EPPO is expected to begin investigations in November 2020.

Fraud against the financial interests of the EU is an international phenomenon: in 2018, the European Anti-Fraud Office (“OLAF”) concluded 84 investigations into the use of EU funds, 37 of which concerned countries outside the EU.[2] In this part of our series of analyses of the EPPO[3] we, therefore, consider the framework for the EPPO’s future international co-operation. This includes dealings with enforcement authorities in non-participating EU Member States as well as the rest of the world.

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Policing Your Own Jardin – France Signals Eagerness to Take Control of Its White Collar Enforcement

by Antoine F. Kirry, Alexandre Bisch, Frederick T. Davis, Robin Lööf, Line Chataud, Ariane Fleuriot, Fanny Gauthier, and Alice Stosskopf

In light of well-publicized U.S. enforcement actions against French companies (Alstom, Total, Technip, Alcatel, BNP), the French government asked MP Raphaël Gauvain to consider measures to protect French companies faced with foreign extraterritorial judicial and administrative procedures. His long-awaited report was published on June 26, 2019. Entitled “Restoring French and European Sovereignty and protecting our companies from extraterritorial laws and measures,” this 100-page document points out the lack of effective legal tools available to French companies faced with extraterritorial proceedings. Drawing on this, the report makes several recommendations. Continue reading →

French Anti-Corruption Authority Raises Alarm About M&A Transactions

by Antoine F. Kirry, Frederick T. Davis, and Alexandre Bisch

The French Anti-Corruption Authority (AFA) is zeroing in on corruption risks hidden in acquisition targets of French companies, in France and overseas.

In a statement reported yesterday, AFA representatives alerted would-be acquirers to the need to conduct in depth pre-acquisition anti-corruption due-diligences.  The AFA observed that most companies and investment bankers seem insufficiently aware of this need, and urged them not to underestimate the reputational damage that may result from potential corruption issues in target companies, in addition to potential sanctions. Continue reading →

France Boosts Tax Fraud Prosecution

by Antoine F. Kirry, Frederick T. Davis, Eric Bérengier, Alexandre Bisch, Robin Lööf, Aymeric D. Dumoulin, Alice Stosskopf, Fanny Gauthier, and Line Chataud

On October 23, 2018, the French Parliament enacted a law aimed at combatting fraud (the “Law”).[1] The most innovative provisions of the Law change key procedural aspects of tax law enforcement, which is likely to result in an increased number of criminal tax fraud prosecutions against both individuals and legal entities. The Law also addresses customs and social security frauds.

Tax Fraud Prosecution: Open the Floodgates Continue reading →

First French DPAs for Corruption Offences

by Antoine Kirry, Karolos Seeger, Alex Parker, Alexandre Bisch, and Robin Lööf

On March 5, 2018, French prosecutors published two Judicial Conventions of Public Interest (“CJIPs” or “French DPAs”) approved by the President of the High Court of Nanterre on February 23. The CJIPs, entered into between prosecutors and two sub-contractors to state-owned utility EDF, SAS Kaefer Wanner (“KW”) and SAS SET Environnement (“SET”), allege that these companies had ceded to solicitations to pay bribes to an EDF procurement manager, and that this behaviour amounted to corruption by them of an individual charged with a public service. KW and SET admitted these facts and their legal qualification[1], and agreed to pay financial penalties of €2,710,000 and €800,000 respectively and compensation to EDF of €30,000 each. In addition, they agreed to submit to monitoring by the French Anti-corruption Agency (“AFA”) for, respectively, 18 and 24 months.

The KW and SET CJIPs are the first to be concluded in respect of corruption offences. Helpfully, they provide (1) detail on the financial incentive of entering into a French DPA for companies with potential exposure for corruption-related offences in France, (2) clarification that co-operation and remediation can significantly reduce the financial penalty, as well as (3) the first examples of monitorships to be supervised by the AFA. However, the crucial question of how a company can qualify for a French DPA remains largely unanswered. Continue reading →