Towards Plural Governance: Functional Equivalence in the Fight Against Transnational Corruption

Revue européenne du droit

1. A method of “soft-enforcement” through peer evaluation

Astrid Mignon Colombet: The Preamble of the OECD Convention sets out the ambitious objective of ensuring that each State Party adopts “equivalent” measures to combat the bribery of foreign public officials in an essentially penal framework: “Recognising that achieving equivalence among the measures to be taken by the Parties is an essential object and purpose of the Convention, which requires that the Convention be ratified without derogations affecting this equivalence”. Equivalence among the measures taken by State Parties to combat foreign bribery is both a method and a goal. First, it is a method that allows States to approximate their anti-corruption legislation while adapting the provisions of the Convention to their own legal systems[1].

It also represents a goal, so essential that the Convention does not permit the stipulation of derogatory measures “affecting this equivalence” at the time of ratification of the Convention. What was the reason for using the concept of “functional equivalence” rather than “harmonization”?

Nicola Bonucci: The notion of functional equivalence or functional method comes from comparative law and is well known to specialists in private international law.  The notion was defined by Erik Jayme in his general course at The Hague in 1995: “laws are then considered with the goal of solving a given problem. The solutions to an issue are compared without taking into account the position of a legal rule in the given system; in this way, an equivalence of solutions is achieved despite the fact that the letter of the law may diverge”.[2]

However, although the concept is known, its inclusion in the preamble of the OECD Convention is indeed unusual. This is primarily due to the treaty framework itself. The OECD Convention obeys as much a logic of international economic law as it does of international criminal law. Thus, the preamble indicates in its first recital that corruption “distorts international competitive conditions.” Within the framework of this atypical conventional instrument, functional equivalence aims to resolve two problems, one structural, the other contextual. From a structural point of view, the Convention is not intended to standardize the criminal law of the Parties to the Convention.

This is explicitly recognized in Commentary No. 2 to the Convention, which states that the Convention “seeks to assure a functional equivalence among the measures taken by the Parties to sanction bribery of foreign public officials, without requiring uniformity or changes in fundamental principles of a Party’s legal system.” From a contextual point of view, the text of the preamble also aims to resolve a specific but major problem: the hostile position of the US Senate towards any treaty that does not admit reservations.[3] This constant position made the American negotiators fear a refusal to ratify the OECD Convention. But, on the other hand, admitting reservations could have led to the unraveling of the Convention. Thus, a balance was found on the basis of a very tight functional equivalence of the measures. The first limitation was to affirm the equivalence of the measures as an essential “purpose and object” of the Treaty. This terminology refers to the 1969 Vienna Convention on the Law of Treaties, which provides in article 19 c) that in the event of a treaty being silent on reservations, the Parties may introduce a reservation provided that it is not “incompatible with the object and purpose”.[4] Thus, while the text of the OECD Convention is silent on reservations, the preamble specifies that the Convention must be ratified without derogation. The second limitation of the notion of functional equivalence comes from the monitoring mechanism of the Convention.[5]

Astrid Mignon Colombet: Indeed, this monitoring mechanism is based on a peer evaluation and peer pressure procedure[6]. Thus, States must not only carry out a self-assessment of their legal system, but also submit to a mutual evaluation by the OECD Working Group to check whether the effects of national legislation comply with the requirements of the Convention.[7] The task could seem daunting!

Thirteen years later, in 2012,[8] and again in 2014, France was subject to the “pressing” scrutiny of the OECD,[9] which invited it, through the choice of a vocabulary that was both diplomatic and very firm, to strengthen its efforts to implement more effective legislation in the fight against foreign bribery. This regular and, above all, public monitoring by the OECD is one of the reasons that led France to adopt the Law of December 9, 2016 on transparency, the fight against corruption and the modernization of economic life, known as “Sapin 2”. While this method of equivalence has clearly worked for France, surely is it difficult to request changes to national penal legislation in the absence of a truly binding framework?

Nicola Bonucci: Admittedly, the risk of a differentiated or even divergent implementation was stressed at the time, particularly in the French Senate.[10] Article 12 of the Convention was negotiated in order to avoid this, but it is to be read in conjunction with the comments attached to it as well as Section XIV of the 2009 OECD Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions, which complements and reinforces the Convention.[11] The monitoring mechanism is based on a simple principle described in the 2009 Recommendation as follows: “where each Member country is examined in turn by the Working Group on Bribery, on the basis of a report which will provide an objective assessment of the progress of the Member country in implementing the OECD Anti-Bribery Convention and this Recommendation, and which will be made publicly available”. The principles on which it is based, i.e. peer review and peer pressure, are not unique to the Convention and to the OECD Working Group on Bribery.[12] Such mechanisms exist in other anti-corruption conventions, but their value lies in the rigor and objectivity of the analysis and the ability of the Group, as a collective body, to resist political pressure.

Thus, apart from the evaluation itself, the process provides for the possibility of adopting the reports by “consensus minus one” (i.e. the country under review cannot block the adoption of the report) as well as by the fact that all reports are automatically made public. The final piece of the puzzle to ensure true functional equivalence is name and shame through the adoption of a public statement, which is often picked up by the international media. The effectiveness of such a toolbox is indisputable. The UK Bribery Act was adopted following pressure from the OECD, and the explanatory memorandum of the law that would become Sapin 2 thus explicitly refers to the reports “published by the Organisation for Economic Co-operation and Development (OECD)”.[13] Eventually, we see that the binding or non-binding nature of a norm rests much more on the understanding or acceptance of being bound than on the formal mode of adoption of the norm. It is indeed this point that makes the strength of the so-called “soft law” of the OECD, for example in the area of taxation.[14]

2. A de facto harmonization of the offence of foreign bribery and its methods of prosecution

Astrid Mignon Colombet: Such awareness of being bound by the norm is particularly illustrated through the implementation by States of Article 1 of the Convention which defines the offence of bribery of foreign public officials. Even if OECD Commentary No. 3 specifies that “Article 1 establishes a standard to be met by Parties, but does not require them to utilize its precise terms in defining the offence under their domestic laws”, the French definition of the offence of bribery of foreign public officials uses substantially the same elements.[15]

As for rules on jurisdiction, Article 4 provides that each State shall take the necessary measures to establish its jurisdiction over the offence “when the offence is committed in whole or in part in its territory”. The OECD Commentary No. 25 encourages States to interpret their territorial jurisdiction broadly “so that an extensive physical connection to the bribery act is not required” as a basis for prosecution.[16] Here again, the French Penal Code is faithful to the principle that each State is responsible for prosecution on its territory, even if only one constitutive element has occurred there.[17]

Since 2010, the U.S. authorities have fully applied this principle by making an extensive application of their jurisdiction to prosecute foreign companies under the FCPA.[18] More recently, France also introduced the possibility, in the Sapin II law, of prosecuting any person “exercising all or part of his economic activity on French territory”.[19] And since 2018, France, as a prosecuting authority, has participated in the coordinated settlement of two major transnational cases.[20]

Twenty years later, the assessment of functional equivalence appears at first sight to be largely positive: bribery of foreign public officials is now an offence punishable by the 44 States Parties to the Convention[21] and the rules of jurisdiction of States are converging. However, difficulties may remain in the coordinated implementation of such prosecutions, even though article 4§3 of the Convention invites States to consult each other to determine the “most appropriate jurisdiction for prosecution.”

Nicola Bonucci: Indeed, article 1, which defines the offence, is quite complex in its structure. Despite commentary No. 3 cited above, the fact remains that article 1 and its various commentaries are extremely detailed and the States’ latitude is tightly circumscribed. Consequently, the functional equivalence of article 1 is more formal than substantive. More generally, the dynamics of the monitoring mechanism and of the collection of evaluation reports mean that, on several themes, we are witnessing a convergence or even a de facto harmonization of standards. The most striking example concerns the planned introduction this year of corporate criminal liability in Germany,[22] even though the OECD Convention in its article 3§2 “Responsibility of Legal Persons” does not make it a sine qua non condition,[23] provided that the system results in “effective, proportionate and dissuasive non-criminal sanctions”. In this case, Germany therefore wishes to go beyond the functional equivalence provided for in the Convention, in order to align its law in substance with that as applied in the other States Parties to the Convention. The same movement leading countries to harmonize their substantive law can be observed with regard to article 4 of the Convention. In the first place, it should be noted that US legislation implementing the provisions of article 4 has never been challenged by the OECD Working Group. On the contrary, during the first assessment of the United States in 1999, the Group considered that “generally, the FCPA implements the standards set by the Convention in a detailed and comprehensive manner. The formulation of the statute is structured and practical in its scope and applicability”.[24]

The controversy of the last few years on an extraterritorial application of the American law would deserve another debate,[25] but it suffices here to note that both the United Kingdom with the Bribery Act and France with the Sapin 2 law have aligned their legal framework with the American one by providing for some form of extraterritoriality.[26] The difference lies in the implementation because where the United States makes a strong use of its prerogatives this is not always the case in the United Kingdom and France.

3. A granular equivalence applied to the liability of legal persons

Astrid Mignon Colombet: If we look again at the issue of the convergence of substantive legislation, the liability regime for legal persons appears to be particularly sensitive, as it concerns the respect of the fundamental principles chosen by each State. While the adoption of criminal liability of legal persons seems to be spreading among the States Parties in order to meet the objective of fighting corruption, there may be divergences between, on the one hand, the advocates of liability of the legal person as a “reflection” or “ricochet” of the liability of the natural person who represents it[27] and, on the other hand, the advocates of an autonomous liability of the legal person accused on the basis of a defect in organization or supervision.[28] Is it possible to go further in the direction of functional equivalence in this area?

Nicola Bonucci: This is perhaps one of the limitations of the notion of functional equivalence, and it touches on the degree of granularity of the equivalence. Let us imagine two countries that both have the principle of criminal liability of legal persons, but in one case liability can be triggered only if the governing body of the company has validated the act of corruption, while the other presumes a fault on the part of the company for any offence committed by one of its employees. In this case, it is clear that equivalence at the level of the principle alone is not sufficient.

For this reason, in addition to the evaluation and monitoring mechanism, the Working Group has developed a “Good Practice Guidance on Implementing Specific Articles of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions” which is attached as Annex I to the Recommendation adopted in 2009[29]. This “Good Practice Guidance” constitutes a “subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions” within the meaning of Article 31 of the Vienna Convention on the Law of Treaties which allows the Working Group to refer to it in its follow-up work. This way is thus closed: (i) article 2 of the Convention establishes the principle of the liability of legal persons, (ii) the monitoring mechanism notes a differentiated implementation, (iii) the good practice guidance defines in a more granular manner the principle set out in article 2, (iv) the monitoring mechanism can verify implementation on the basis of the good practice guidance and not only on the basis of the text of the convention.

4. In the “uncharted waters” of functional equivalence: “out of court” agreements

Astrid Mignon Colombet: We are leaving the shores of the Convention to join other OECD work on negotiated criminal justice agreements. A recent OECD report (2019) indicates that since 1999, out of 890 cases of foreign bribery, 695 (78%) have been resolved in the form of out-of-court agreements,[30] defined as “a wide range of mechanisms used to resolve criminal matters without a full court proceeding, based on an agreement between an individual or a company and a prosecuting or another authority”.[31] In France, the Sapin 2 law followed this trend by introducing the judicial public interest agreement (“CJIP”) inspired by the American and British deferred prosecution agreements (DPAs), which give legal entities the possibility of entering into a form of criminal settlement without admission of guilt.[32] These out-of-court agreements are not explicitly contemplated by the Convention. Nevertheless, can we say that the objective of functional equivalence has been achieved with respect to the adoption of negotiated justice agreements within the States Parties to the Convention?

Nicola Bonucci: It seems to me that on the subject of out-of-court resolutions we are in “uncharted waters” because the Convention is absolutely silent on the subject, even though the Working Group has indeed examined the different mechanisms put in place by this or that country. Admittedly, the 2019 report makes a certain number of observations but, at this stage, it is difficult to assert that there is functional equivalence with regard to out-of-court resolutions, even if a certain form of convergence can be seen there as well. The final texts of the settlement of the so-called Airbus case in France in the United Kingdom and the United States give a somewhat simplistic but revealing illustration of the situation: the CJIP is 22 pages long, the DPA in the United Kingdom is 32 pages long and the DPA in the United States is 104 pages long! Ongoing discussions regarding the revision of the 2009 Recommendation and the wording that may be agreed by the Parties on this subject may provide a future basis for the Working Group. It is interesting to note that, on this subject as on so many others, international law adapts to national practice more than it inspires it. It should be remembered, in this respect, that the OECD Convention has been very largely inspired by the American FCPA. Closer to home, the current work of the EU on due diligence is inspired by the terms introduced by the French law on the duty of care. More systematic attention should be paid to the way in which national law or unilateral action by one or more States can shape international law, which in turn shapes national law in a kind of circular movement.

5. Functional equivalence outside the Convention: compliance mechanisms

Astrid Mignon Colombet:  Compliance mechanisms have largely been developed outside the sphere of treaties. However, although the OECD published a good practice guidance regarding compliance as early as 2009,[33] not all States have the same appreciation of the compliance obligation imposed on companies. While the United States assesses a company’s compliance in the context of a criminal investigation,[34] France has adopted a mixed system based on an assessment of compliance by the French Anti-Corruption Agency (AFA)[35] and, where applicable, in the context of the conclusion and enforcement of CJIP agreements.[36]

It is also true that the increasingly important objective of detecting corruption could lead to compliance mechanisms becoming increasingly similar in the long run. Like the U.S. Department of Justice’s guidelines, the joint guidelines of the National Financial Prosecutor’s Office (PNF) and the AFA of June 26, 2019 encourage companies to self-disclose facts to the authorities and to cooperate with the judicial investigation by providing the elements of their internal investigation.[37] Following the Chancellery Circular of June 2, 2020 encouraging voluntary disclosure,[38] the latest recommendations of the AFA published on January 12, 2021 even specify, in the absence of any obligation of self-disclosure, that the governing body is “free” to bring to the attention of the competent prosecuting authority any violations likely to constitute a criminal offense and that it is essential to formalize an internal investigation procedure.[39]

Could the proposals of the recent report of the Club des Juristes “For a European Law of Compliance” be transposed to the OECD level?[40] And can functional equivalence go so far as to incite States Parties to provide for a system of voluntary disclosure and internal investigation?

Nicola Bonucci:  In this recent report, the Club des Juristes calls for a Europe-wide compliance law. The report is very rich and contains many interesting proposals, but one wonders whether, in a globalized world, the European level is the right one and whether it is advisable to introduce a hard law of compliance. In this respect, a more flexible approach might be more promising. At the same time, it is true that the field of compliance has largely evolved since 2009 and that the Good Practice Guidance, while remaining valid in broad terms, would deserve to be reviewed and amplified when the Recommendation is revised. However, I think that it is difficult to imagine a single framework for compliance and its control. For example, with the creation of the AFA, France seemed to favour an essentially ex ante control of compliance, whereas other countries such as the United Kingdom or the United States favour an ex post control.

Does this mean that one system is more efficient than another? Similarly, on the crucial subject of what is called “voluntary disclosure”, it would be difficult today to even establish the principle for all States Parties to the Convention. “Judicial deals”[41] are an integral part of the American system – which even provides for a pre-established scale of “plus” and “minus” – but are only gradually entering the systems of other countries and are the subject of a certain number of preventions, for good and bad reasons. What about a “voluntary disclosure” made in a country where the rule of law is flawed? As for internal investigations, the diversity of regimes and approaches is such that any functional equivalence seems premature to me. Indeed, for there to be functional equivalence there must be prior agreement on two points: that the problem exists and that it must be resolved. We have not yet reached this point, even though legal practitioners are faced with sometimes contradictory requirements.

6. The limits of functional equivalence: the criminal liability of natural persons

Astrid Mignon Colombet:  Perhaps we have reached the crux of the issue of functional equivalence; that is, the liability of natural persons when the former is brought into play in the context of lawsuits brought against the legal person. Whether it concerns directors or employees, the prosecution of natural persons, exercised simultaneously or following the signature of out-of-court agreements with legal persons, raises many questions. In France, the Sapin 2 law and the implementing instructions have clearly indicated that the legal representatives of legal entities should not benefit from immunity from prosecution, while recalling that the principle of the opportunity to initiate a prosecution must be applied on a case-by-case basis. The result is uncertainty and a difference in the prosecution regime applicable to legal persons and natural persons, with only the former benefiting from an agreement without admission of guilt. Admission of guilt seems to remain in some States Parties the foundation of negotiated justice applicable to natural persons, as is the case in France with the comparution sur reconnaissance préalable de culpabilité (“appearance on prior admission of guilt”). However, other States have adopted procedures in this area that do not imply such a prior admission of guilt, such as the Italian patteggiamento.[42]

Can such a differentiated treatment of natural persons compared to that of legal persons prosecuted for the same conduct fall within the scope of functional equivalence? More generally, natural persons are both at the heart of the company accused of corruption when they are identified as potential perpetrators or accomplices and at the center of the anti-corruption system when they act as whistleblowers. Can the Convention deal with the treatment of the natural person, the subject of criminal law, using the concept of “functional equivalence”?

Nicola Bonucci: In my opinion, this point goes beyond the question of functional equivalence. It goes to the very notion of what we mean by corporate criminal law and the fact that this body of law can be applied to both individuals and corporations. Such a contraction between two fields with very different origins, i.e. criminal law and business law, has two structural limits. Firstly, criminal law as imagined by Beccaria in Dei delitti e delle pene is based on the individualization of responsibility and punishment, which works perfectly for natural persons but with much greater difficulty for legal entities. Secondly, the interests of some can objectively clash with the interests of others. We see this with the concept of voluntary disclosure by companies, which can lead to implicate their own managers or employees, but we also see it in the context of whistleblowing.

The United States has set up a reward system for whistleblowers and the Securities and Exchange Commission has announced a record year in 2020[43]. It is clear that the system put in place by the United States aims to decouple the situation of the individual from that of the company by playing one off against the other. In Europe we are not (yet) there! This fundamental divergence has been partially erased by functional equivalence, which has made it possible to implement these provisions in a harmonized manner, but without offending the legal principles and cultures of each country.This approach has proved to be effective and could be used in other areas of international law; indeed, the OECD has drawn some inspiration from it as regards taxation issues.[44] Nevertheless, the functional approach alone cannot provide all the answers to a world in which the economy is totally globalized and the law remains essentially characterized by territoriality.

REFERENCES

[1] P. Moulette, “Le rôle de l’OCDE dans la lutte contre la corruption internationale”, Revue européenne du droit, Sept. 2020, p. 124.

[2] E. Jayme, “Identité culturelle et intégration : le droit international privé postmoderne”, Cours général de droit international privé, 1995, p 105. Académie de droit international de la Haye, tome 251, pp. 9-267.

[3] See p. 16 of “Treaties and Other International Agreements: The Role of the United States Senate”, 2001: <https://www.govinfo.gov/content/pkg/CPRT-106SPRT66922/pdf/CPRT-106SPRT66922.pdf>.

[4] Vienna Convention on the Law of Treaties, 1969, <https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf >.

[5] There are few analytical texts on the OECD Convention. See: M. Pieth, L. Low, N. Bonucci (Eds.), The OECD Convention on Bribery: A Commentary, Cambridge University Press, 2013; see also a presentation by Mark Pieth to the OAS: <http://www.oas.org/juridico/english/pieth2000.htm>.

[6] Commentary relating to article 12 of the Convention.

[7] M. Delmas-Marty, M. Pieth, U. Sieber, Les chemins de l’harmonisation pénale, Harmonising criminal law, UMR de droit comparé de Paris, volume 5, p. 425.

[8] OECD Press Release: “OECD seriously concerned at lack of foreign bribery convictions in France, but recognises recent efforts to ensure independence of prosecutors”, 3 October 2012, <https://www.oecd.org/france/oecdseriouslyconcernedatlackofforeignbriberyconvictionsinfrancebutrecognisesrecenteffortstoensureindependenceofprosecutors.htm>.

[9] OECD Press Release: “Statement of the OECD Working Group on Bribery on France’s implementation of the Anti-Bribery Convention”, 23 October 2014, <https://www.oecd.org/corruption/statement-of-the-oecd-working-group-on-bribery-on-france-s-implementation-of-the-anti-bribery-convention.htm>.

[10] Information report by Senator José Balarello on the draft legislation to amend the Penal Code and the Code of Criminal Procedure and on the fight against corruption (“Projet de loi modifiant le Code pénal et le Code de procédure pénale et relatif à la lutte contre la corruption”), Report 42 (1999-2000) :  <https://www.senat.fr/rap/l99-042/l99-0428.html>.

[11] See M. Gavouneli, “L’effet normatif des mécanismes de suivi : l’exemple de la lutte contre la corruption”, in Le Pouvoir normatif de l’OCDE, journée d’études de Paris organisée par la SFDI, Editions Pedone, 2014.

[12] See F. Pagani, “L’examen par les pairs : un instrument de coopération et de changement Analyse d’une méthode de travail de l’OCDE”, Study available on the OECD website: <https://www.oecd.org/fr/cad/examens-pairs/1955301.pdf>.

[13] See the draft law on transparency, the fight against corruption and the modernization of economic life (“Projet de loi relatif à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique”), n° 3623, introduced on 30 March 2016: <https://www.assemblee-nationale.fr/14/projets/pl3623.asp>.

[14] On soft law, see the annual study of the French Conseil d’Etat (2013): <https://www.conseil-etat.fr/actualites/actualites/etude-annuelle-2013-le-droit-souple>.

[15] Art. 435-3 of the French Penal Code.

[16] Commentary relating to art. 4§1 of the OECD Convention.

[17] Art. 113-2, paragraph 2 of the French Penal Code: “An offense is deemed to have been committed on the territory of the Republic when one of its constituent events takes place on that territory”.

[18] A. Mignon Colombet, “Transnational Negotiated Justice: the Cornerstone of an Organized Extraterritoriality?”, Revue européenne du droit, Sept. 2020; DOJ, SEC, FCPA, A Resource Guide to the U.S. Foreign Corrupt Practices Act, 2012, p. 12.

[19] Art. 435-6-2 and 435-11-2 of the French Penal Code.

[20] OECD, Report, Resolving Foreign Bribery Cases with Non-Trial Resolutions, 2019, p. 119: the table «Ten largest Foreign Bribery Enforcement Actions among the Parties of the Convention» mentions Société Générale with France and the United States as prosecuting authorities; and the Airbus SE case on January 31, 2020.

[21] OECD, Review of the 2009 Anti-Bribery Recommendation: Written Consultation with Stakeholders, 2019.

[22] V. A. R. Jevtic, “Corporate criminal liability in Germany: an overdue reform?”, Online Contributions of the Revue des Juristes de Sciences Po, 1 Nov. 2020: <https://www.revuedesjuristesdesciencespo.com/index.php/2020/11/01/corporate-criminal-liability-in-germany-an-overdue-reform/>.

[23] See commentary No. 20 relating to art. 2 of the Convention “Responsibility of Legal Persons”.

[24] OECD, United States Review of Implementation of the Convention and 1997 Recommendation <http://www.oecd.org/unitedstates/2390377.pdf>.

[25] See the Phase 4 Report on the Implementation of the OECD Convention by the United States: <https://www.oecd.org/corruption/anti-bribery/United-States-Phase-4-Report-ENG.pdf>.

[26] On the very broad scope of this provision of the Sapin 2 law, see the Memorandum of Criminal Policy on the Fight against International Corruption of June 2, 2020: <https://www.legifrance.gouv.fr/circulaire/id/44989>.

[27] Art. 121-2 of the French Penal Code; e.g. Cass. crim., 2 Dec. 1997 : JCP G 1998, II, 10023, rapp. F. Desportes.

[28] As an example, see: M. Galli, “Une justice pénale propre aux personnes morales”, Revue de sciences criminelles, 2018, p. 359.

[29] OECD Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions: <https://www.oecd.org/investment/anti-bribery/anti-briberyconvention/oecdantibriberyrecommendation2009.htm>.

[30] OECD, op. cit., p. 14.

[31] OECD, Resolving Foreign Bribery Cases with Non-Trial Resolutions, 2019, p. 3.

[32] Art. 41-1-2 of the French Code of Criminal Procedure.

[33] Annex 2 of the above-mentioned 2009 OECD Recommendation.

[34] T. Baudesson, C. Merveilleux du Vignaux, “Les conditions d’ouverture des accords de règlement”, RICEA, February 2021, p. 15; DOJ, Evaluation of Corporate compliance Programs, June 2020: “Because a corporate compliance program must be evaluated in the specific context of a criminal investigation, the Criminal Division does not use any rigid formula to assess the effectiveness of corporate compliance programs”.

[35] Art. 1 of the Sapin 2 law.

[36] Art. 41-1-2 2° and R 15-33-60-7 of the French Code of Criminal Procedure; Joint FRP-AFA Guidelines on the Implementation of the Public Interest Judicial Agreement of June 26, 2019 (“Lignes directrices conjointes PRF-AFA sur la mise en œuvre de la convention judiciaire d’intérêt public”).

[37] Joint FRP-AFA Guidelines, op.cit., p. 9.

[38] Memorandum of the Ministry of Justice June 2, 2020 on the fight against international corruption (“Circulaire du ministère de la justice 2 juin 2020 en matière de lutte contre la corruption internationale”).

[39] AFA Recommendations, 12 January 2021, points n°81, 270, 278.

[40] Report of the Club des juristes “Pour un droit européen de la compliance”, November 2020 : <https://www.leclubdesjuristes.com/wp-content/uploads/2020/11/DP_rapport-compliance_FR_WEB.pdf>.

[41] To use the title of the book directed by A. Garapon and P. Servan-Schreiber, Deals de Justice: Le marché américain de l’obéissance mondialisée, PUF, 2013, p. 208.

[42] OECD, Resolving Foreign Bribery Cases with Non-Trial Resolutions, 2019, p. 55.

[43] Press Release: SEC Whistleblower Program Ends Record-Setting Fiscal Year With Four Additional Awards”, 30 Sept. 2020: <https://www.sec.gov/news/press-release/2020-240>.

[44] See on this point the approach in the “Multilateral Convention to Implement Tax Treaty Related Measures to Prevent BEPS” adopted in Paris the 24 November 2016: <https://www.oecd.org/tax/beps/multilateral-convention-to-implement-tax-treaty-related-measures-to-prevent-beps.htm>.