France

Reviewed April 2015
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PUBLIC OFFICIALS
    Is there an offence of bribing public officials?
    • Under Articles 433-1, 432-11, 435-1 to 4 of the French Criminal Code (FCC), there are offences which cover the offer or promise of donations, gifts or benefits to both domestic and foreign public officials and the request or acceptance of promises, donations, gifts or benefits by a domestic or foreign public official.

      There is also a specific offence under Article 434-9 of the FCC of offering or promising donations, gifts or benefits in relation to the judiciary and certain individuals involved in the judicial process.

    What is the relevant test for each offence?
    • Under Articles 433-1 and 435-3 of the FCC, it is an offence for a person to directly or indirectly offer or promise donations, gifts or benefits to a “public official” or a foreign public official.

      Under Articles 432-11 and 435-1 of the FCC, it is an offence for a public official or a foreign public official to directly or indirectly request or accept promises, donations, gifts or benefits.

      Under Article 435-2 and 435-4 of the FCC it is an offence to directly or indirectly request, accept, promise or offer donations, gifts or benefits, intending that a person will abuse his real or hypothetical influence with a foreign public official to obtain any distinction, employment, contract or other favourable decision.  Article 435-4 also prohibits any person from acceding to such requests.

      Under Articles 433-1 and 432-11 (bribing public officials) and Articles 435-1, 435-2, 435-3 and 435-4 of the FCC (bribing foreign public officials), an individual must intend that the public or foreign public official carries out or abstains from carrying out an act within his duty, mission or mandate or, to obtain from the public or foreign public official any distinction, employment, contract or other favourable decision.

      According to the FCC, a “public official” is any person holding public authority, discharging a public service mission or holding a public electoral mandate.  A “foreign public official” is an individual holding public authority or discharging a public service mission or holding a public electoral mandate in a foreign state or in a public international organisation.

      Pursuant to Article 434-9 of the FCC (bribing a member of the judiciary), it is also an offence to directly or indirectly offer or promise donations, gifts or benefits in relation to the judiciary and certain individuals involved in the judicial process in return for performing or abstaining from performing an act of the office. Individuals covered by this article are:

      judges or prosecutors
      members of the registry of a court
      a juror or any other member of a court of law, and
      arbitrators or experts appointed either by a court, by the parties or by a person appointed by a judicial authority to carry out conciliation or mediation. 

      Under Article 434-9 of the FCC (bribing a member of the judiciary), there must be an intention on the part of the briber that the individual involved in the judicial process will perform or abstain from performing an act of his office.

    Can corporates and individuals commit the offence?
    • Both corporates (in certain circumstances) and individuals can be liable for the offences of bribing public and foreign public officials.

      French law provides for the prosecution of corporates as legal entities in a similar way as individuals, and allows for the prosecution of specific individuals who are acting as organ(s) or representative(s) of the company. Under Article 121-2 of the FCC, legal persons, with the exception of the State, are criminally liable for the offences committed on their account by their organs or representatives.

      As a result, corporates may be held liable for acts carried out by an individual or several individuals, when the latter acted as the corporate’s organ(s) or representative(s), and may be prosecuted for most of the same offences as an individual.

    Does the offence have extra-territorial effect?
    • Under Article 689-8 of the FCC Procedure, the principle of universal jurisdiction (a principle of public international law giving extra-territorial effect) is applicable to international corruption. According to Article 689-1 and 689-8, perpetrators and accomplices of crimes committed outside the French territory can be prosecuted by French courts, if the perpetrators are in France or if the offences are committed by EC or national civil servants of EU or OECD countries in specific circumstances.

    Are there any exceptions or defences?
    What are the penalties?
    • Individuals

      The maximum penalty for the offences under Articles 432-11, 433-1 and 434-9 (bribing a public official and bribing a member of the judiciary) is ten years’ imprisonment and a fine of €1m or up to twice the amount obtained through the infraction, which can be cumulative.

      The maximum penalty for the offences under Articles 435-1 and 435-2, 435-3 and 435-4 (bribing a foreign public official) is ten years’ imprisonment and a fine of €1m or up to twice the amount obtained through the infraction, which can be cumulative.

      The maximum penalty for the offences under Articles 435-2, and 435-4 (bribing a foreign public official) is five years’ imprisonment and a fine of €5m or up to twice the amount obtained through the infraction, which can be cumulative.

      Under Article 434-9 (bribing a member of the judiciary), when the offence is committed by a judge or prosecutor in favour of or against a person who is being criminally prosecuted, the penalty is ten years' imprisonment and a fine of €1m, which can be cumulative.

      Corporates

      Corporates can incur a fine of up to five times the maximum for individuals detailed above. Additional penalties include:

      being prohibited from undertaking, directly or indirectly, the professional or social activity in which, or at the occasion of which, the offence was committed
      being placed under judicial supervision
      closing the office or one of the offices of the company
      being disqualified from public tenders, and
      being forbidden from drawing cheques. 

      Corporates and individuals may also be subject to confiscation of belongings used or intended for the commission of the offence or of the proceeds of the offence, except for articles subject to restitution. A convicted foreigner may also be banned from French Territory either permanently or for a period of up to ten years.

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    PRIVATE SECTOR
      Is there an offence for bribery within the private sector?
      • Under Article 445-2 of the FCC it is an offence to solicit or accept gifts, presents or any advantage in the private sector. In addition, Article 445-1 makes it an offence for a person to propose a bribery agreement and prohibits any person from acceding to such requests.

      What is the relevant test?
      • Under Article 445-2 of the FCC, it is an offence where:

        any person (not being a public official, carrying on a public service mission or holding a public electoral mandate) who holds or carries on any management position or any occupation
        on behalf of any person whether natural or legal, or any other body
        in the context of a professional or social activity
        solicits or accepts or directly or indirectly promises gifts, presents or gives any advantage
        in order to carry out or refrain from carrying out any act within, or facilitated by, his occupation or position, and
        in violation of his legal, contractual or professional obligations.

        Under Article 445-2 and 445-1 of the FCC, the act or omission must infringe the recipient’s legal, contractual or professional obligations.

      Can corporates and individuals commit the offence?
      • Both corporates (in certain circumstances) and individuals can be liable for the above-mentioned offences.

        French law provides for the prosecution of corporates as legal entities in a similar way as individuals and allows for the prosecution of specific individuals. Under Article 121-2 of the FCC, legal persons, with the exception of the State, are criminally liable for the offences committed on their account by their organs or representatives.

        As a result, corporates may be held liable for acts caused by an individual or several individuals, when the latter acted as its organ(s) or representative(s), and may be prosecuted for most of the same offences as an individual.

      Does the offence have extra territorial effect?
      • The offence of bribing within the private sector applies:

        to French nationals who commit bribery abroad
        to all nationals in French territory
        if any element of the offence takes place on French territory, or
        to French nationals or foreign citizens who commit an offence of bribery abroad against a French national.

        In cases where French nationals commit bribery overseas, proceedings in France can only be instituted by the Public Prosecutors Office and must be preceded by a complaint made by the victim of the offence, or a legal successor, or be preceded by an accusation made formally by the overseas authority.

      Are there any exceptions or defences?
      What are the penalties?
      • The maximum penalty for the offences under Articles 445-1 and 445-2 (private sector bribery) is five years’ imprisonment and/or a fine of €500,000. 

        Corporates can incur a fine of up to five times the maximum for individuals.

        Individuals found guilty of the offences set out in Articles 445-1 and 445-2 may also incur the following additional penalties:

        forfeiture of civic, civil and family rights as set out in Articles 131-26, which are:

        the right to vote
        the right to be elected and the right to hold public office
        the right to hold a judicial office, or to give an expert opinion before a court, or to represent or assist a party before a court of law
        the right to make a witness statement in court other than a simple declaration, and
        the right to be a tutor or guardian (this prohibition does not preclude the right to become a tutor or guardian of one’s own children);

        prohibition from:

        carrying out public official activities
        the professional or social activity in the exercise or the context of which the offence was committed, and
        exercising a trade or business profession or running, administering, managing or controlling in any capacity, directly or indirectly, for its own account or for others, a commercial or industrial company.

        NB These prohibitions can be cumulative.

        confiscation of the belonging which was used or intended for the commission of the offence or of the proceeds of the offence, except for articles subject to restitution (Articles 131-21 of the FCC), and/or

        the display or dissemination of the decision (Articles 131-35 of the FCC). 

        A convicted foreigner may also be banned from French Territory either permanently or for a period of up to 10 years.

      This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.