Given the historically “inquisitorial” nature of the French criminal legal system, the conduct of internal investigations is novel to the French judicial culture and, before the introduction of the CJIP mechanism, the French equivalent to a DPA, French law never envisioned investigations conducted by private consultants or lawyers, even under the supervision of the French enforcement authorities. The PNF and the AFA now expressly specify in their guidelines that the conduct of such investigations (either before or in parallel to judicial proceedings) is material to the granting of settlement agreements, and to receiving cooperation credit. Therefore, we expect companies and their legal advisors will routinely consider conducting internal investigations, as well as self-reporting, in the event corrupt practices are discovered.
However, corporate internal investigations in France should always be considered in light of specific French law considerations, including:
- The absolute obligation not to tamper with ongoing judicial investigations by French authorities, enforced through various criminal offenses aimed at protecting the “determination of the truth” by such authorities (witness tampering, tampering with evidence, tampering with the investigation, etc.);
- By extension, the absence of any clear legal framework governing the relations between companies’ external legal counsel and the Public Prosecutor or the investigating judges in relation to internal investigations, given that French lawyers and judges are not accustomed to working side by side in such a cooperative way;
- Strict data privacy laws that may hinder or complicate data gathering and review in a multijurisdictional context;
- A strict blocking statute imposing criminal sanctions on parties that request or send documents or information for evidentiary purposes with a view to or in the context of foreign judicial or administrative proceedings without complying with, in particular, international instruments addressing the transmission of evidence from France to another State;
- Broad and complex regulations designed to protect employees that may limit the company’s ability to conduct interviews or investigate its employees in an effective manner; and
- Rules of professional conduct that require employees under investigation to be afforded the right to assistance of legal counsel if it appears (prior to or during an interview) that such employees may be held accountable for any wrongdoing at the end of the investigation.