PUBLICATION OF THE EUROPEAN COMMISSION'S (EC) FIRST EU ANTI-CORRUPTION REPORT
On 3 February, the EC published the EU Anti-Corruption Report. The report, which analyses both corruption within the Member States and the efforts to combat corruption, is the first of the reports required by the EC's 2011 Communication on Fighting Corruption in the EU and will now be published at two-year intervals. This year's report has a particular focus on public procurement.
The report, which defines corruption broadly as any "abuse of power for private gain", includes chapters dedicated to each of the Member States, and the chapter on France reveals that 68% of French respondents believed corruption to be widespread in France (though only 6% felt affected by corruption), and that 59% of French businesses surveyed considered corruption to be an issue, well above the EU average of 43%. Similarly, 73% of French managers regard corruption as an obstacle to competition in France.
The report concludes that, while France is largely free of petty corruption, significant concerns exist in respect of public procurement, international business transactions and high-ranking politicians – notwithstanding recent legislative measures regarding conflicts of interest. As a result, its recommendations include:
- Continuing the on-going reforms relating to conflicts of interest among, and asset disclosures by, public officials.
- Improving the existing legislation on foreign bribery.
- Monitoring the implementation of legislation designed to protect the operational independence of prosecutors, as well as continuing efforts to safeguard their statutory independence.
- Addressing the GRECO's recommendations on party political funding (see the December 2013 update).
FRENCH SENATE ADOPTS A DRAFT LAW TRANSPOSING DIRECTIVE 2012/13/EU ON THE RIGHT TO INFORMATION IN CRIMINAL PROCEEDINGS AND ELEMENTS OF DIRECTIVE 2013/48/EU ON THE RIGHT OF ACCESS TO A LAWYER
As mentioned in last month's update, France has yet to transpose the provisions of Directive 2012/13/EU on the right to information in criminal proceedings. Transposition of the Directive must take place by 2 June 2014.
An important step towards meeting that deadline was taken on 24 February 2014 when the French Senate approved the draft law transposing European Parliament and Council Directive 2012/13/UE of 22 May 2012 on the right to information in criminal proceedings.
In addition to complying with the requirements of Directive 2012/13/UE, the draft law grants suspects who have not been taken formally into custody a right to the presence of a lawyer – a requirement imposed by Directive 2013/48/EU on the right of access to a lawyer. Transposition of Directive 2013/48/EU need only take place by 27 November 2016, but the Government considered it "opportune" to introduce the measure now. Unlike most of the other provisions of the draft law approved by the Senate, which will, if passed, enter into force on 1 June 2014, the rights regarding access to a lawyer will apply from 1 January 2015, giving the Government sufficient time to make the necessary legal and financial arrangements.
The next stage in the legislative process is examination of the draft bill by a National Assembly commission, which is scheduled for early April.
THE COMMISION NATIONALE DE L'INFORMATIQUE ET DES LIBERTÉS (CNIL) EXTENDS THE SCOPE OF ITS STANDARD AUTHORISATION FOR WHISTLEBLOWING HELPLINES
The CNIL is the French data protection authority. Previously, its standard authorisation for whistleblowing helplines applied only to internal procedures that: (i) were required by French legal or regulatory obligations (or section 301(4) of the Sarbanes-Oxley Act or the Japanese legislation nicknamed "J-SOX"); and (ii) concerned finance, banking, accounting and anti-corruption, as well as anti-competitive practices.
An amended version of the authorisation has now been published, under which the first of the criteria has been loosened so that the measures must simply correspond to "a legal obligation or a legitimate interest". Similarly, the areas which fall within the scope of the standard authorisation have been expanded so that, in addition to the existing sectors, it now covers: measures to counter discrimination and workplace harassment; health, safety and security at work; and protection of the environment. As previously, a company unable to meet these criteria may seek individual authorisation from the CNIL.
The amended authorisation also clarifies that exceptions to the general principle that whistleblowers must identify themselves will only be permitted where: (i) the seriousness of the events described is established and the facts are sufficiently detailed; and (ii) particular measures are taken in handling the information.
CIRCULAR CLARIFYING THE POWERS OF THE MINISTER OF JUSTICE AND THE PUBLIC PROSECUTOR
Following the changes to the relationship between the Minister of Justice and public prosecutors introduced by Law no. 2013-669 of 25 July 2013 (see the August update), on 31 January 2014 the Minister of Justice published a circular clarifying the practical effect of the reforms.
The circular reiterates the importance of a clear distinction between the conduct of criminal policy and the functions of the public prosecutor. While the Minister of Justice is responsible for the conduct of the Government's criminal policy, and may issue general instructions to public prosecutors, the reforms mean that he or she may no longer give specific instructions in individual cases.
That does not mean, however, that the Minister of Justice is not to be kept informed, and, for the first time, the circular establishes criteria for the transmission of information on individual cases up the French administrative hierarchy. Thus, the Chancellery must be informed of cases which: are of such seriousness that they are likely to require coordinated action by the authorities or enjoy national media attention, fall within a criminal policy priority, have an international dimension or involve particular victims or suspects.