French Anticorruption Agency and French National Financial Prosecutor's Office Publish Updated Guide on Internal Anticorruption Investigations

In March 2022, the FAA and the PNF published a draft guide on conducting internal bribery and corruption investigations. A public comment period followed the publication of the draft guide. The new Guide, in its final form, offers a compilation of good practices to adopt when conducting an internal investigation related to alleged bribery or corruption, and should be considered in addition to guidelines published by the French National Council of Bars, or CNB, on the role of lawyers in internal investigations, and the professional rules of the Paris Bar (the Vademecum on the Investigating Lawyer, annexed to the Internal Rules of the Paris Bar). While the Guide is primarily directed at companies that are subject to Article 17 of the Sapin II law and expected to carry out internal investigations (in particular upon receipt of internal whistleblower alerts), the guiding principles and procedural safeguards described in the Guide are intended to apply more generally to internal investigations triggered by internal or external alerts.   

The Guide clarifies the conditions, framework, and manner in which internal anticorruption investigations should be launched and conducted, and the potential follow-up actions that may be carried out.

The Guide presents some notable changes compared to the draft published in March 2022:

• The Guide adapts to recent developments regarding the protection of whistleblowers and negotiated criminal justice, with particular reference to (i) the Waserman law of March 21, 2022, and the new obligation to open up the company's internal whistleblowing system to co-contractors, their subcontractors, or job candidates (non-exhaustive list); and (ii) the new PNF guidelines on the implementation of judicial conventions of public interest ("CJIP"), according to which the conduct of a thorough internal investigation fully supports the implementation of a CJIP, attesting to the good faith of the company and constituting a mitigating factor when determining the amount of the "public interest fine."
• Within groups of companies, the Guide proposes as a good practice the adoption at the central level of a policy presenting broad investigation principles and specifying the applicable governance between entities, and then, in a second step, the implementation of this central policy among the affiliated entities in the form of internal investigation procedures (specific to subsidiaries, for example), taking into account local requirements.
• The Guide recommends providing company employees with procedural guarantees ensuring that "the balance between the employees' right to privacy and the smooth running of the company" is maintained. The observance of "the rights of the defense," the protection of personal data, and the traceability of modifications made to the interview reports are conditions and prerequisites of an investigation that respects the rights of employees.
• The Guide recommends formalizing a written internal investigation report when the investigation confirms the accuracy of the facts reported, in particular where those facts relate to violations of the corporate anticorruption code of conduct or where the conduct at issue likely constitutes a criminal offense. Where appropriate, the Guide recommends sending the report to the corporate governing body or to the competent corporate body designated in the internal investigation procedure, with a view to determining whether any follow-up action is necessary.
• The Guide takes the view that the "document drawn up at the end of the internal investigation" is not protected by any professional secret, regardless of the status or professional capacity of the members of the investigation team. This controversial aspect of the Guide remains subject to further discussion and input from practitioners and bar organizations.  

The Guide also maintains and expands on certain guidance from the March 2022 draft Guide, including:

• The application of the "subsidiarity principle" at the opening and during the management of an internal investigation. The Guide indicates that the "strategic decision to initiate an internal investigation is the responsibility of the company's governing body or the qualified persons it has designated," while specifying—and this is a novelty—that qualified persons can be appointed "by a properly formalized delegation of powers." In accordance with the "subsidiarity principle," the responsibility to act may fall, according to the Guide, on the competent entity closest to the facts of the internal investigation (for instance, a subsidiary); and
• For "the most sensitive" alerts, an ad hoc or special committee can be set up to make collegial decisions regarding the follow-up actions to be given to an internal alert and the advisability of opening an internal investigation, particularly in matters of corruption. When the governing body does not itself decide to initiate the internal investigation, it must at least be informed of open investigations relating to "the most sensitive situations." Correlatively, and regardless of the modus operandi of the investigation (an investigation conducted at the central or local level), the group's governing body (or the designated, qualified persons) must remain informed of the conclusions of the investigation and the follow-up actions taken.

This Guide contributes to the consolidation of the French normative framework relating to internal investigations. It is worth noting that the Guide offers recommendations and best practices that are not legally binding.