Tag Archives: Margot Sève

EU Court Upholds Commission’s Power To Demand Data Held by Foreign Companies

by Bill Batchelor, Ryan D. Junck, David A. Simon, Nicola Kerr-Shaw, Bora P. Rawcliffe, and Margot Seve

Photos of the authors

Top left to right: Bill Batchelor, Ryan D. Junck, and David A. Simon. Bottom left to right: Nicola Kerr-Shaw, Bora P. Rawcliffe, and Margot Seve (Photos courtesy of authors)

Summary

In Nuctech Warsaw (T-284/24), the EU Court of Justice held that EU subsidiaries can lawfully be required to provide access to email accounts and data held by their overseas parent company. The ruling involved the following framing:

  • Broad reach of EU extraterritorial investigative powers: The order interprets the European Commission’s (EC’s) investigative powers broadly. EU law applies to conduct with significant effects in the EU, even if the conduct occurs outside the EU. Consequently, the EC may request information from non-EU companies to assess potential EU law violations.
  • Implications for other EU enforcement regimes: The investigation was carried out under the EU Foreign Subsidies Regulation (FSR), but the ruling has implications for the EC’s powers under general antitrust rules and other regulations such as the Digital Markets Act or the Digital Services Act. The judgment follows divergent rulings in the UK that limited the extraterritorial reach of UK regulators’ enforcement powers in fraud and antitrust cases. (See our February 2021 alert “English Supreme Court Limits Serious Fraud Office’s Extraterritorial Reach” for more details.)
  • Siloing access to data within a corporate organization: The ruling held that there was no evidence local subsidiaries could not access China-held data, or that compliance with the EC’s inspection decision would compel the applicants and the group to infringe Chinese law, including criminal law. Therefore, companies should consider:
    • If their IT environment and procedures can be siloed to enable the company to demonstrate that accessing parent company data from the EU is not technically feasible without cooperation from the non-EU entities.
    • Whether law and regulation applicable to a company would prevent it from sharing this data with an EU regulator. If so, this should be well-documented in advance, potentially with external legal counsel validation, so that any refusal to comply with a request for data could be quickly substantiated with specific reference to other applicable laws.

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Comparing French and U.K. Guidance on Corporate Cooperation to U.S. Practices

by Keith D. Krakaur, Ryan D. Junck, Gary DiBianco, Elizabeth Robertson, Christopher Bolyai, Margot Sève, Vanessa K. McGoldrick, and Molly Brien

On June 27, 2019, the French Financial Prosecutor (“PNF”) and the French Anticorruption Agency (“AFA”) published joint guidelines regarding the legal framework governing French DPAs (“CJIPs”) that address the conditions necessary for companies to be considered for a CJIP, including expectations for cooperation during an investigation (“French CJIP Guidance”).[1] On August 6, 2019, the U.K. Serious Fraud Office (“SFO”) published Corporate Co-operation Guidance (“U.K. Co-operation Guidance”) as part of the SFO Operational Handbook, detailing the steps companies are expected to undertake to obtain cooperation credit.

Both sets of guidance demonstrate further alignment of those jurisdictions’ deferred prosecution agreement (“DPA”) regimes with long-standing practices in the U.S., albeit with some notable areas of divergence. Continue reading →

Sapin II: Is the Era of Compliance and Criminal Settlements Upon France?

by Margot Sève

This post is an abstract of the article published under the same title in the Revue Trimestrielle de Droit Financier / Corporate Finance and Capital Markets Law Review (Thomson Reuters), as part of the thematic section edited by Michel Perez and Margot Sève entitled “International Financial and White Collar Crime, Corporate Malfeasance and Compliance.”

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On December 9, 2016, France adopted law n° 2016-1691 on transparency, the fight against corruption, and the modernization of the economy.  The law has been commonly called the “Sapin II” law, after French Minister of Finance Michel Sapin who, in 1993, authored the first Sapin law on transparency in politics and public procurement, and sought in 2016 to further enhance transparency and combat corruption.

While France has in recent years certainly made efforts towards more severe punishment for corruption-related offenses, it has nonetheless been criticized for its weak enforcement track record.  For example, while the sanctions for active and passive corruption of domestic officials, active and passive corruption in the private sector, corruption of foreign officials, and influence peddling were increased in 2013, only one company (Total S.A.) was fined between 2000 and 2016 for acts of corruption of foreign public officials.  This lack of enforcement efficiency has led the OECD, as part of its monitoring of countries’ implementation and enforcement of the OECD Convention on Combatting Bribery, to report serious concerns regarding “the lack of foreign bribery convictions in France.” Continue reading →