January 12, 2021

French anti-corruption agency clarifies Sapin II

On January 12, 2021, the French anti-corruption agency (the Agence française anticorruption, or AFA) published recommendations to help persons subject to Law no. 2016-1691 – known as Sapin II – comply with the law’s mandates.  Sapin II established the AFA.  It makes anti-corruption compliance programs mandatory for large companies and imposes penalties for companies that fail to comply, provides protection for whistleblowers, creates a new type of criminal settlement (without the admission of guilt) for corruption, money laundering and tax fraud, and expands the jurisdiction of French criminal courts to extra-territorial corruption.

The new recommendations, which are effective immediately, replace the initial guidance issued by the AFA in December 2017, six months after Sapin II came into effect.  The new guidance is divided into three parts:

Part I contains general provisions, and lays the groundwork for the remaining sections, which are organized around three pillars of compliance:  commitment on the part of management, understanding of the risks to which the entity is exposed, and risk management through prevention, detection and remediation.   These provisions apply to all persons subject to the law.

Part II covers businesses to which Article 17 of the law applies.  It provides clarifications regarding the various elements of anti-corruption compliance, including the role of bodies in charge of oversight, mapping of risk, third-party due diligence based on the type and level of risk.  The recommendations in this section urge companies to develop an system for reviewing alerts, and to specify the role of internal and accounting controls.

Part III addresses persons in the public sector subject to Article 3 of the law.  It defines the responsibility of the organization’s governing body, and details methods for mapping the risk of breaches of integrity.  The recommendations in this section emphasize a code of conduct focused on anti-corruption, training and awareness of anticorruption, and due diligence on third parties. 

In the appendices, whistleblower procedures and protections are outlined, and examples of scenarios where risk is heightened for those in the public sector are described, including payment of subsidies, human resources management, and procurement.  

AFA press release | Guidance