Act No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as the "Sapin II" Act, brought major changes to the fight against corruption and fraud. Seven years after it came into force, and given the run of crises we have known for some years now, is it necessary to strengthen this legislation?
What is the "Sapin 2" Act?
The Sapin 2 Act, which answers a twin ethical and economic imperative, gave France the tools to detect, prevent and effectively punish corruption and breaches of probity. The Act rests on three main pillars:
- greater transparency in the process of taking public decisions and in economic life;
- more effective action against corruption, in particular internationally, with both preventive and punitive strands;
- modernising economic life while protecting savers and investors.
and it delivered the following major advances in the fight against corruption:
- the creation of the French Anti-Corruption Agency (Agence française anticorruption, AFA), whose mission is to prevent and detect acts of corruption, to check that corruption prevention programmes are in place in companies, and to sanction failings;
- stronger protection for whistleblowers through the creation of a whistleblower status;
- an obligation on companies with more than 500 employees, as well as on companies carrying out regulated activities or holding public procurement contracts, to put corruption prevention programmes in place. The 8 measures recommended by the AFA, which together make up the corruption prevention and detection framework, are as follows:
- the code of conduct
- the internal whistleblowing system
- the risk map
- third-party due diligence procedures
- internal and external accounting control procedures
- training for employees and directors
- the disciplinary policy
- internal monitoring and assessment of the measures put in place
- the widening of the scope of the transparency rules for interest representatives (lobbyists) acting before public authorities;
- the creation of a criminal settlement mechanism for companies that have committed acts of corruption.
What is the verdict seven years on?
The record of the Sapin II Act is nothing to turn one's nose up at and is broadly positive, in particular thanks to the effectiveness of the tools deployed, as noted in 2021 by the evaluation mission entrusted to MPs Raphaël Gauvain and Olivier Marleix to assess the effectiveness of the measures put in place to combat corruption and influence peddling in France. That said, the resulting report also set out a number of changes that could be considered in the years ahead. It also gave rise to a bill aimed at strengthening 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 Act, at the initiative of the Observatoire de l'éthique publique and the chair in public procurement law. What these initiatives have in common is the will, and the need, to breathe new life into the current body of legislation.
Is it time to move this model on?
In a fast-moving context, amid the crises we are living through, and because it is never wise to rest on past achievements, it is entirely legitimate to ask how robust this anti-corruption framework is in meeting the challenges in this field. To strengthen the legislation in force, the authors of the texts mentioned above recommend, by way of example, extending the scope of the entities subject to the rules laid down by the Sapin II Act by removing the requirement that the parent company be established in France, strengthening the mechanisms for exclusion from public procurement, and filling certain gaps in transparency in public procurement. The following, in particular, are put forward:
- the option of excluding from a public procurement award procedure an economic operator that has sought to influence the award decision in recent award procedures
- the creation of a national register of economic operators ineligible for public procurement contracts, under the responsibility of the ministry for the economy and finance
- stronger compliance obligations for public bodies, together with a definition of the "officers required to adopt and implement" the 8 pillars mentioned above.
- stronger rights for individuals in the course of an internal investigation.
And in the meantime?
These various proposals, very much of their time, will in all likelihood be the subject of new legislation in the coming months, and they legitimately raise the question of anticipating improvements to the anti-corruption arrangements already in place (or still to be put in place) in your organisations, of assessing how fit for purpose they are, and of defining an appropriate action plan. You almost certainly have everything to gain.