Official Guidance Clarifies Eligibility Requirements for "French DPAs" in Corruption-Related Matters but Raises Key Questions
The Financial Public Prosecutor and the French Anticorruption Agency are working hand in hand to fight corruption.
The Financial Public Prosecutor and the French Anticorruption Agency ("FAA") have recently adopted guidelines on the implementation of the "convention judiciaire d'intérêt public" ("CJIP"), the French version of a deferred prosecution agreement, or "DPA," which has been the subject of other Jones Day publications. While these guidelines shed light on the circumstances under which companies may be eligible for a CJIP, they raise important questions that will warrant close scrutiny as the guidelines are applied in specific cases.
Eligibility for a CJIP
The guidelines set forth various requirements that a company must satisfy in order to be eligible for a CJIP. These requirements include that the company: (i) has not previously been convicted of corruption or influence trafficking; (ii) has implemented an effective anticorruption compliance program; and (iii) cooperated in the French judicial investigation, including through self-disclosure (see below).
Cooperation and internal investigations
A company may satisfy the cooperation requirement by self-disclosing the conduct at issue to the Financial Public Prosecutor and by conducting an internal investigation, either in advance of, or in parallel with, a French judicial investigation. According to the guidelines, as part of its cooperation, the company is expected to provide to the Financial Public Prosecutor a report of its internal investigation along with relevant documents and information pertaining to the investigation (e.g., reports of witness interviews).
Where an internal investigation was conducted by an outside counsel, the company, assisted by its counsel, will need to decide which documents to provide to the Financial Public Prosecutor and which documents to withhold. With respect to documents withheld on the basis of privilege, the Financial Public Prosecutor will assess whether the claim of privilege is justified and, in case of disagreement, whether the company's refusal to provide the withheld materials affects the company's level of cooperation.
Elsewhere, the guidelines provide more clarity on the computation of the public interest fine that would typically accompany a CJIP. The guidelines also mention the Financial Public Prosecutor's and FAA's roles in cases involving international coordination among law enforcement authorities, as well as in the implementation of the Blocking Statute.
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