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A better look at the French Deferred Prosecution Agreement

An effective prosecution tool in the interest of the general public or a private sector risk management tool?

Laurence Fabre

Director, Private sector programme, Transparency International France

For more context on France's enforcement measures against foreign bribery, read this analysis from Transparency International France.

On December 9, 2016, drawing from Anglo-Saxon procedures, France established transactional justice for breaches of probity by creating the Judicial Convention of Public Interest (“CJIP”) under a new law called Sapin II.

The CJIP allows a company, at the initiative of the Public Prosecutor, to conclude a case through a deferred prosecution agreement (DPA).

DPAs avoid the collateral damages of a conviction or a registration in criminal records, as long as the company acknowledges the facts.

An indisputable success that led to the “largest global foreign bribery resolution to date”

Looking back at the last four years, the CJIP's results are indisputable: 11 CJIPs, including three relating to foreign bribery, concluded with the most powerful economic sanctions.

Nearly EUR 600 million was recovered by the French enforcement authorities, thanks to unprecedented international cooperation with the British and American authorities, the most striking example of which being the Airbus case described as the “largest global foreign bribery resolution to date” by the US Department of Justice. We should welcome this.

In addition, in the case against UBS, the Swiss multi-national investment bank, the French Court did not hesitate to condemn the company very severely at first instance, following the prosecuting authorities' requirements and confirming in this the position of the Public Prosecutor who had initially proposed a CJIP then refused by UBS.

This reality should not, however, lead us to let our guard down in view of this mechanism's manipulation risks and potential abuses. The CJIP must remain a sanction and not become a risk management tool once an investigation has been initiated.

Indeed, the objective of this transactional justice is to promote, through an incentive mechanism, the cooperation of companies in the prosecution of acts of corruption that affect them.

A still imperfect tool

However, in cases concluded by a CJIP, no company has ever been at the origin of the denunciation of the alleged bribery facts.

The CJIP also makes it difficult to make a comparative assessment between the actual amount of fraud and the negotiated fine. The negotiations upstream of the CJIP being covered by secrecy, the accessible contents of the CJIP remain a broad and scarcely readable summary. This is all the more true in international cases as there are no guidelines specifying the criteria for the distribution of prosecutions and fines among the concerned countries’ enforcement authorities.

Finally, let us also underline the little space that this new system leaves to the victims of corruption, who can only assert their prejudice, who do not participate in the negotiations, and who do not have any recourse to challenge the prosecuting authorities' CJIP proposal.

While the harmful consequences of corruption on society are no longer to be demonstrated, France's new legal arsenal to fight corruption still does not allow victims to take an effective and unavoidable place in the sanction of this plague.