Wrong. The law Sapin II (Law 2016-1691 of 27 December 2016) has been in force for several months, but the consultation draft of the guidelines is not expected to be issued by the Agence Française Anti-corruption (AFA) (French Anti-Corruption Agency) until early October. Even so, many companies falling within the thresholds set by law, and even some which do not (i.e., because they anticipate that they will in the near future or see compliance as a qualitative element of their governance to be touted in the face of competition) are actively implementing their anti-corruption program based on the triptych: code of ethics / risk mapping / training. As with any new legislation, questions arise as to the scope of the work to be carried out, in particular for those undertakings which, due in particular to the geographical coverage of their operations, are also already subject to other anti-corruption measures such as the US Foreign Corruption Protection Act (FCPA) or the UK Anti-Bribery Act, respectively, in force since 1997 and 2010.
A commonly accepted idea is that these programs, in force in the French subsidiaries of international groups, and often internally perceived as well tested for many years, should be sufficient to satisfy satisfactorily the requirements of a French regime, of which it has often been said that it was strongly inspired by these two Anglo-American models. The C suite for these firms may be less inclined, paradoxically, than those of firms less familiar with such rules to consider with the same urgency the need to ensure that their internal working methods conform to the new French requirements. One should remember that these requirements not only apply to activities located in France but are equally applicable to subsidiaries and branches located abroad, including the United Kingdom or the United States, that the criteria laid down by law are met.
Although the obligations of Sapin II, the FCPA and the Anti-Bribery Act on combating corruption are similar, the internal procedures imposed by Sapin II are fundamentally different. For example, while UK law prohibits any "facilitation payment", and the FCPA authorizes them to the extent that they are made to facilitate a non-discretionary act on the part of an administration. Sapin II adopts the same attitude as the UK law with regard to facilitation payments.
However, the innovation of Sapin II is the creation of mandatory procedures to ensure not only that companies are actively involved in the fight against corruption but that companies take a step further and create a real anti-corruption culture within the company by setting up, for example, regular training sessions and the creation of a whistleblower hotlines.
The CEOs of international groups who assume that the limitations imposed by the FCPA and the Anti-Bribery Act are sufficiently robust, could thus overlook this French innovation designed to create a true anti-corruption culture. In light of the penalties imposed for non-compliance with Sapin II, in particular regarding failure to implement procedures such as risk mapping, training or adoption of a code of ethics as an internal regulation, these international groups face significant risks. It is the creation of such procedures and their regular and good faith follow-up that should promote the creation of an anti-corruption culture within the company. The international groups whose French subsidiaries are subject to Sapin II should look closely at the obligations of Sapin II because their FCPA / Anti-Bribery Act procedures alone are not enough to protect companies and their shareholders.
From another point of view, one might question the implementation of procedures within a limited perimeter to France, while ignoring the group's activities abroad. For example, can a US group with subsidiaries in Europe, Asia and South America reasonably establish procedures such as mapping risks limited to its French perimeter, and ignore what is happening elsewhere in the group? Should this group not also take into account indirect risks from subsidiaries in other countries not subject to the obligations of Sapin II? Similarly, do not investment funds located in France with majority ownership in French or foreign companies making up their portfolio of investments also fall under the Sapin II law, or even other anti-corruption regimes, on the assumption that, in the case of Sapin II, the thresholds are considered to have been not at the group level. The new French Anti-corruption Agency created by Sapin II would do well to more clearly define the outline of the law and give thereby greater certainty.
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