philosophie de la transaction internationale

« Conference – criminal law – L2 – 09.29.2018 SAPIN II ACT AND UKBA IN INTERNATIONAL BUSINESS TRANSACTIONS: WHAT EFFECTIVENESS? INTRODUCTION In a context of globalization and growing influence of lobbies and powerful enterprises, the need for honesty and transparency to enhance free-competition have become of the upmost importance.

In 1997, the members of the OECD (organization for the economic cooperation and development) and 8 other nonOECD countries adopted and signed the Anti-Bribery Convention.

The OECD guidance stated: “Bribery undermines democracy and the rule of law and poses very serious threats to sustained economic progress in developing and emerging economies and to the proper operation of free markets more generally”.

I further quote: “The Parties’ commitment to this fight is grounded in the recognition that no government or market economy can function effectively if it is riddled by bribery.

Corruption entails costs that no country can afford.

Serious harm results when public officials take bribes, for example, when awarding contracts to foreign businesses in such areas as road construction, water infrastructure, medicines or electricity.

In addition to the human suffering caused by inferior products and services, bribery derails the functioning of markets and undermines economic development”.

It influenced, country after country, the implementation of national laws, combating bribery.

In 1993, The First Sapin Act was enacted. The United Kingdom Anti-Bribary Act (UKBA) was passed on 8 April 2010, and entered into force on 1st July 2011, becoming the most draconian (drastic) legislation in the world to prevent and fight corruption in international business transactions. Before this anti-Bribary Act, the international anti-corruption enforcement was largely dominated by the US Foreign Corrupt Practices Act 1977 (the FCPA) which is more restrictive in terms of fight of corruption.

Indeed, it does not cover bribery on a private level and only covers active bribery (the giving of a bribe).

It must also be proven that the person offering a bribe did so with the intent to corrupt. In 2014, the World Bank estimated at US $ 1 trillion the amount of bribes paid annually around the world.

As far as the European economy is concerned, the cost of corruption would be estimated at 120 billion euros (Greco's annual report -Group of States against Corruption -Council of Europe- of March 28 th, 2014).

By the end of the year 2014, the OECD pointed out in its annual report a series of concrete recommendations, intended for France to intensify its actions to fight bribery of foreign public officials and undertake important reforms. 1 Conference – criminal law – L2 – 09.29.2018 When Transparency International, a non-governmental organization, presented its annual ranking of the most corrupt countries, the statistics of the Corruption Perceptions Index ranked 180 countries according to the degree of corruption in public administration perceived by experts and the business community and France appeared to be in the 23 rd place, far behind most other democratic countries, and behind the United Arab Emirates.

Somalia was in the last place as the most corrupt country.

Denmark and New Zealand shared the top rank in the world, followed by Finland, Norway and Switzerland. This ranking was strongly undermining the image of France on the International stage with the risk of being seen as a less attractive country for foreign investments. According to this NGO, which acts as a watchman, “Corruption is the abuse of entrusted power for private gain.

It can be classified as grand, petty and political, depending on the amounts of money lost and the sector where it occurs”.

It promotes to fight against corruption though more transparency, “shedding light on shady deals, weak enforcement of rules and other illicit practices that undermine good governments, ethical businesses and society at large”, because “corruption corrodes the fabric of society.

It undermines people’s trust in political and economic systems, institutions and leaders.

It can cost people their freedom, health, money – and sometimes their lives”.

Business ethics compliance is therefore expected to be reinforced. In July 2015, Michel Sapin, declared: “in the fight against corruption, France cannot just satisfy itself with the existing situation." It is in this context of global increasing corruption that the Sapin II Act 20161961 on Transparency, Anti-Corruption and Economic Modernization was promulgated on December the 9th, 2016 to align France standards to the best standards levels existing in the UK and in the USA.

The implementing decree on the functioning of the new French Anti-Corruption Agency was published on March 14th, 2017 with a plethora of other implementing texts. On the 12th December 2017, last year, was held the 20 years of the OECD AntiBribery Convention in Paris to discuss its successes, challenges and global impact.

The observation was made that an increasing number of sanctions was pronounced on a global scale with several billion of euros of fines, but primarily, more and more affairs would become public, with greater political coverage, in particular by an increasing number of radio and television broadcasts as well as on the Internet and social networks. What are the forms of corruption? Article 3.2 of the Law refers to the creation of the French Anti-Corruption Agency, which “shall draft guidelines to help private and public sector entities prevent and detect corruption, influence peddling, extortion by public officials, unlawful taking of interest, misappropriation of public 2 Conference – criminal law – L2 – 09.29.2018 funds and favoritism.” The generic term of Corruption covers therefore various types of offenses. The objectives of the Agency’s Guidelines are clearly aimed at helping: - organizations to adopt suitable operating rules to strengthen their performance or their competitiveness and to protect themselves against harm to their reputation or economic value arising from an impairment of their probity. - public industrial and trading establishments subject to Article 17 of Act 20161691 of 9 December 20162 to comply with their obligations; - organizations to prevent a penalty imposed by a foreign authority for failure to comply with an obligation to prevent or detect corruption. We will try to compare the UKBA and the Sapin II Acts, and to evaluate how effective or efficient these enhanced laws and procedures can be to fight Corruption: - Through material scope of the offense and preventive measures (I) - Through the jurisdictional power to act and repressive measures (II) I – THE EFFECTIVENESS OF THE ANTI-BRIBERY LAWS THROUGH THE MATERIAL SCOPE OF THE OFFENSE AND PREVENTIVE MEASURES Material constitution of the offense: Material fact + intention Widened range of offenses Determines the liability to prosecution (what offense, committed by whom, in which circumstances?) A – the UKBA 1.The updated classical offenses Sections 1 to 6 of the UKBA define several and classical criminal offenses Section 1 – Active bribery (the offering, promising or giving of a bribe financial or other advantage) in 2 cases, either in private or public sectors. Case 1 applies where the person intends the advantage to bring about the improper performance by another person of a relevant function or activity or to reward such improper performance. Case 2 applies where the person knows or believes that the acceptance of the advantage offered, promised or given in itself constitutes the improper performance of a relevant function or activity. ‘Improper performance’ means performance which amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust, and whether it is function or activity which has been performed improperly; For example: Hospitality 3 Conference – criminal law – L2 – 09.29.2018 Prosecution will have “to show that the hospitality was intended to induce conduct that amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust.

This would be judged by what a reasonable person in the UK thought.

So, for example, an invitation to foreign clients to attend a Six Nations match at Twickenham as part of a public relations exercise designed to cement good relations or enhance knowledge in the organisation’s field is extremely unlikely to engage section 1 as there is unlikely to be evidence of an intention to induce improper performance of a relevant function. Other example: the close case of conflict of interests (pharmaceutical laboratory) qualified as a risk of attempt of bribery.

Senior medical employee proposing to bypass the usual procedure to submit a study-survey of a new therapy to a public Hospital directly to the best physicians in the related domain, rather than to submit it to the specific bureau intended to filter the applications. Section 2 – Passive bribery (the requesting, agreeing to receive or accepting of a bribe) Section 6 - Foreign public official bribery (in order to obtain or retain business or an advantage in the conduct of business) with the intention of influencing the official in the performance of his or her official functions, and for the offering party, the intention to obtain or retain any advantage of the expected performance.

However, the offence is not committed where the official is permitted.... »