Prosecution of Criminal Offenses

When a corruption-related offense is committed, criminal proceedings can be commenced by any of the following:

• The Public Prosecutor (under the authority of the French Minister of Justice), following a criminal complaint by the victim of the offense, a preliminary investigation conducted by the police under its supervision, or an alert received from a whistleblower or French government authority, such as the AFA or the French anti-money laundering unit (TRACFIN);
• The victim of the offense (if any), who is legally entitled to compel the appointment of an investigating judge where the Public Prosecutor failed or decided not to start criminal proceedings within 3 months from the filing of a criminal complaint; or
• An anticorruption non-profit organization, under the same conditions as the victim, specifically approved by the French Ministry of Justice for doing so.

  In practice, for the most complex corruption cases (e.g., transnational corruption), the National Financial Prosecution Service (Parquet national financier or “PNF”) (based in Paris and composed of over fifteen individual prosecutors)—as opposed to a local Public Prosecutor—will be in charge of the prosecution, with assistance from the Central Office for the Fight Against Corruption and Financial and Tax Crimes, a police department specializing in domestic and international corruption, duty of honesty-related offenses, business law-related offenses, tax fraud, and money laundering.

  Except in cases where no further investigations are needed based on the Public Prosecutor’s preliminary investigation, commencement of the criminal proceedings will trigger the appointment of an investigating judge, who will be in charge of gathering all information and evidence that may incriminate or exonerate any individual or entity accused of the offense. This judge will eventually determine whether to refer the case to the criminal courts for judgment.

  Civil parties (i.e., victims or non-profit organizations) have the right to seek damages from the perpetrator of an offense, whether an individual or a legal entity, for the pecuniary and non-pecuniary losses suffered, or, with respect to non-profit organizations, compensation for impairment to the cause the non-profit advocates for. Such rights can be exercised (i) together with the introduction of criminal proceedings, (ii) by joining ongoing criminal proceedings commenced by the Public Prosecutor or (iii) independently, before civil courts.

The French Anticorruption Agency (AFA)

The Sapin II Law created the French Anticorruption Agency (Agence française anticorruption or “AFA”), a national agency headed by a judge, appointed by the French President for a 6-year (non-renewable) term, and under the joint supervision of the French Ministry of Justice and the French Ministry of Finance. On March 17, 2017, the French President appointed Charles Duchaine, a former investigating judge, as the Director of the AFA.

The Agency’s actual enforcement powers are expressly limited to verifying the existence and effectiveness of large companies’ compliance programs, where such implementation is required by the Sapin II Law. It therefore does not have the power to search, investigate and impose sanctions for corruption, influence peddling or other criminal conducts. In practice, however, the Agency should inform the Public Prosecutor of corruption-related (and other) offenses discovered during the performance of its supervisory powers.

The AFA imposes sanctions through its Sanctions Committee, composed of six independent members appointed by and from three French supreme courts: the Court of Cassation (judiciary), the Council of State (administrative justice), and the Court of Auditors (public accounting).