On September 1, 2021, the Agence française anticorruption (AFA), France’s anti-corruption enforcement authority, issued draft guidance to help businesses manage the risk of conflicts of interest. The guidance is issued pursuant to Article 3(2o) of the Transparency, Anti-Corruption and Economic Modernization Act 2016-1691 (9 December 2016), known as Sapin II, which mandates that the AFA draft guidelines to help public and private enterprises detect and prevent bribery, extortion, influence peddling, favoritism, the misappropriation of public funds, and other criminal acts.
As stated by the AFA, the guidance is intended to help businesses, their management, and compliance professionals identify high-risk situations, and formulate measures to prevent and manage such situations. The draft is divided into three sections:
(i) Understanding conflicts of interest in the context of corruption risks;
(ii) Identifying conflicts of interest, and;
(iii) Preventing and managing conflicts of interest.
Following a detailed definition, including examples of conflicts of interest, Section I asks “Why prevent and manage conflicts of interest within the framework of an anti-corruption compliance program?” The answer is fourfold: an anti-corruption compliance program that fails to address conflicts of interest would expose an enterprise to legal, economic, financial and reputational damage. The guidance outlines the relevant provisions of the penal code, and offers judgments issued by the Cour de Cassation as examples of unlawful taking of interest, and aiding and abetting influence peddling. Section II provides a roadmap for identifying conflicts of interests, points to the types of processes, operations and employment classifications at the highest risk of conflicts of interest, and gives examples of risky scenarios. Under Section III, laws covering the prevention of conflicts of interests in specific sectors are enumerated, and methods of defining and formalizing an integrated conflicts of interest policy are described. These include training, tone at the top, and tools for encouraging employees to report conflicts. In addition, the relevant ethics provision for the public sector is cited. Finally, this section of the draft discusses penalties for infringements of policies, procedures and laws governing the declaration and avoidance of conflicts of interest, citing the relevant labor laws and concluding with the balance between transparency and privacy required by article 12 of the United Nations Universal Declaration of Human Rights.
Public comment on the proposed guidance must be submitted prior to the end of September 2021.