On January 12, 2021, the French Anti-Corruption Agency (“AFA”) published its new guidelines defining the implementation of an anti-corruption program, which came into effect on January 13, 2021 (“Guidelines”).1 These Guidelines have an extraterritorial application. They replace the prior version of the guidelines published on December 22, 2017.

The new Guidelines significantly modify the 2017 guidelines. Please find hereafter key points to consider from the Guidelines:

  • Risk mapping:
    • The process should address broader risks, such as fraud and abuse of corporate assets, forgery, concealment or money laundering.
    • Recommended techniques and methods: organization of workshops, interviews or questionnaires, written summaries and traceability of steps to identify risk scenarios;
  • Management and board of directors’ involvement in risk mapping and relevant liability;
  • Choice of suppliers and competitive bidding to help control risks;
  • Compliance function: precisions regarding the missions, structure and resources, notably appointment of local compliance officers, including for subsidiaries, country or business units;
  • Applicability of the AFA Guidelines, burden of proof and the presumption of compliance in the context of an AFA audit:                                                                                   
    • presumption of compliance in case of application of the AFA Guidelines (the AFA must demonstrate an ineffective, incorrect or incomplete application of the Guidelines); and
    • if an approach other than the AFA Guidelines is used to apply the Sapin II law, the company will be expected to justify its choice and how it complies with the Sapin II law.

The Guidelines cover compliance extraterritorial obligations according to Sapin II law. This includes all countries where the company, if headquartered in France and falling under the threshold of the Sapin II law, has subsidiaries or activities. It also includes all French subsidiaries of foreign companies, if those subsidiaries fall under the threshold of the Sapin II law.

Mayer Brown's compliance, regulatory and investigations team in Paris and across the world will be happy to share with you their detailed and practical analysis of these new Guidelines.

1 AFA, Guidelines of the French Anti-Corruption Agency to help private and public sector entities prevent and detect corruption, influence, peddling, extortion by public officials, unlawful taking of interest, misappropriation of public funds and favoritism, 2021, available at: https://www.agence-francaise-anticorruption.gouv.fr/fr/lafa-publie-nouvelles-recommandations