Law 2016-1691 of December 9, 2016 on transparency, the fight against corruption and the modernization of economic life, known as the “Sapin II Law” has brought major changes in the fight against corruption and fraud. 7 years after its implementation, and given the crises we’ve been experiencing over the past few years, is there a need to strengthen this legislation?
What is the “Sapin 2” law?
The Sapin 2 law, which responds to a dual ethical and economic imperative, has given France the tools to effectively detect, prevent and punish corruption and breaches of probity. This law is based on three main pillars:
- greater transparency in the public decision-making process and in economic life;
- take more effective action against corruption, particularly internationally, with preventive and repressive measures;
- modernize economic life while protecting savers and investors.
and has led to the following major advances in the fight against corruption:
- the creation of the French Anti-Corruption Agency (AFA), whose mission is to prevent and detect acts of corruption, verify the implementation of corruption prevention programs in companies, and sanction non-compliance;
- strengthening the protection of whistleblowers by creating a status for whistleblowers;
- the obligation for companies with more than 500 employees, as well as companies engaged in regulated activities or benefiting from public contracts, to set up corruption prevention programs. The 8 measures recommended by the AFA to prevent and detect corruption are as follows:
- the code of conduct
- internal warning system
- risk mapping
- third-party assessment procedures
- internal and external accounting control procedures
- employee and management training
- disciplinary policy
- internal monitoring and evaluation of the measures implemented
- broadening the scope of transparency rules for interest representatives (lobbyists) working with public authorities;
- the creation of a penal transaction mechanism for companies having committed acts of corruption.
How would you sum up 7 years later?
The assessment of the application of the Sapin II law is not to be sneezed at, and is positive overall, not least because of the effectiveness of the tools implemented underlines, in 2021, the evaluation mission has been entrusted to MPs Raphaël Gauvain and Olivier Marleix to assess the effectiveness of the measures put in place to combat corruption and interest peddling in France. However, the resulting report also sets out a number of possible developments for the coming years. This has also led to a bill to strengthen the fight against corruption, tabled in the French National Assembly in 2021, and more recently to the drafting of a white paper for a Sapin III law by the Observatoire de l’éthique publique and the Chair in Public Contract Law. What these approaches have in common is the desire and need to breathe new life into the current legislative arsenal.
Is it time for this model to evolve?
In today’s fast-moving, crisis-ridden environment, and because it’s never a good idea to rest on one’s laurels, it’s perfectly legitimate to question the robustness of our anti-corruption system in response to the challenges we face. The authors of the above-mentioned texts recommend, for example, that current legislation be strengthened by extending the scope of entities subject to the rules laid down by the Sapin II Act, by eliminating the requirement for the parent company to be established in France, by reinforcing the mechanisms for exclusion from public procurement, and by closing certain loopholes in terms of transparency in public procurement. In particular, we present..:
- the possibility of excluding from a public procurement procedure an economic operator who has attempted to influence the decision to award a contract in the context of recent procurement procedures
- the creation of a national register of economic operators ineligible for public procurement contracts, under the responsibility of the Ministry of Economy and Finance
- the reinforcement of public-sector compliance obligations and the definition of “responsible parties required to take and implement” the 8 pillars mentioned above.
- strengthening the rights of individuals during internal investigations.
And in the meantime?
These proposals, which are in line with the times, will most probably be the subject of new legislation in the months to come, and legitimately raise the question of anticipating the improvement of anti-corruption measures implemented (or to be implemented) in your organizations, assessing their relevance and defining an appropriate action plan. It’s a win-win situation.
