It will be important for companies to carefully and thoroughly identify and weigh the various cost-benefit considerations accompanying a decision to self-disclose wrongdoing. The New Guidelines make it very clear that companies that demonstrate good faith and are pro-active in identifying, disclosing and remedying any wrongdoing will benefit from substantial fine reductions.
Admitting the allegations
The PNF makes it clear in its New Guidelines that when a company “systemically contests” the facts and allegations, this can be interpreted as “a lack of desire to benefit from a CJIP which, in turn, is likely to lead to the PNF withdrawing the company’s eligibility to benefit from a CJIP.”8 Problematically, this language fails to appreciate the long term impact for companies on admissions that the PNF may require, especially the impact on ongoing litigation, future class actions and ongoing commercial relationships. It will therefore be a balancing act for a company and its legal advisers to consider the extent to which they should contest some allegations as companies will need to demonstrate to the PNF that they wish to benefit from a CJIP whilst protecting their long-term commercial interests.
Access to the case file
The New Guidelines make it clear that the PNF will determine on a case-by-case basis whether all or part of the documents of the case file should be made available to the lawyers representing the company. In making its decision, the PNF will consider whether giving access will prejudice the investigation. If access is given, the company or its lawyers will be entitled to make a copy. This is a key development as it will enable a company and its legal advisers to potentially have access to the case file much earlier than it currently would, and in turn will make companies aware of allegations against them and charges they may face.
If the CJIP is negotiated at the prosecution stage (“stade de l’instruction”), the parties that have been indicted or that have the status of assisted witness will have access to the case file9 and will be entitled to make a copy.
Publicity
The New Guidelines indicate that “a few days” before the CJIP validation hearing will take place, the PNF will publicly disclose the date of the validation hearing and the name of the company which has been offered a CJIP. There is therefore likely to be more press interest during the validation hearing than previously. It will therefore be important for a company and its legal advisers to have developed an effective communications plan before any CJIP is finalised and validated.
AFA costs
The PNF has indicated that it expects companies to cover the costs incurred by the AFA for the time spent by experts assessing the company’s compliance programme.10 This is a new development which could lead to substantial costs for companies. Companies are therefore advised to have comprehensive and adequate compliance programmes in place and to invest in remedying any deficiencies identified during the CJIP negotiation process.
Coordination with foreign prosecuting agencies
The New Guidelines reiterate that the PNF will coordinate with foreign prosecuting authorities as needed, ensure that a “coherent” one-day global settlement is entered into, and that one comprehensive compliance programme is implemented which will be supervised by the French anti-corruption agency.11
In the New Guidelines, the PNF confirm that efforts will be made to ensure that companies are not prosecuted twice for the same set of facts (respect of the principle of ne bis in idem). If a CJIP is concluded and the PNF receives a request for mutual legal assistance for facts covered by the CJIP, the PNF will only provide the mutual legal assistance upon receiving assurances from the foreign prosecuting authorities that they will not to pursue the company for the same set of facts as those in the CJIP.
Conclusion
Though not legally binding, the New Guidelines provide much-needed clarity for companies seeking to resolve an investigation by entering into a CJIP. Among other things, the New Guidelines make it clear that a passive approach will be punished and that companies hoping to resolve investigations on favourable terms should perform thorough internal investigations, self-report wrongdoing and cooperate with the authorities.
The PNF has also sought to increase transparency and predictability with its New Guidelines and provide additional comfort to companies and their legal advisers to trust the French DPA negotiation process.
The New Guidelines overlap significantly with similar guidance issued by the US Department of Justice and the UK Serious Fraud Office, providing further evidence of the French commitment to joining the ranks of the US and the UK in fighting corporate corruption. The French authorities are sending a clear signal that France has and will continue to develop its white-collar enforcement capability, and that it will continue to actively enforce Sapin II.
Companies should be prepared for increased scrutiny in this aggressive enforcement environment.