The French Anti-corruption Agency ("AFA") has published a draft "Guide on Gifts and Invitations Policies" ("Guide pratique sur les politiques cadeaux et invitations en entreprise") for corporations and non-profit organisations. It is currently considering comments on its 18 July 2019 draft collected from industry groups and NGOs. The guide is the third of a series of six the agency plans to publish this year.
Entities expected to comply with "Soft Law" guidance on corporate gifts and invitations policies in France.
Until recently, companies registered in France had no guidance available on how to draft gifts and invitations policies that comply with French Law.
The AFA draft guide explains how existing law gifts and hospitality practices in the corporate world by identifying the types of conduct such policies should aim to prevent, and existing regulations with which the policy should comply. This includes, notably bribery offenses, anti-corruption compliance requirements under Sapin II Law and healthcare-specific requirements.
The AFA noted that "gifts and invitations are common practices in business life", but that "even when they do not pursue an undue advantage, gifts and invitations could raise suspicion of collusion between people from different entities, to the loss of these entities".
This guide, like the five others the AFA plans to publish this year, is "soft law", meaning that is not legally binding but serves as a reference point to help corporate actors comply with existing laws and regulations, such as criminal bribery statutes or sector-specific rules. However, as part of its controls exercised over entities subject to Sapin II anti-corruption compliance requirements, the AFA expects controlled entities to comply with its Guide, and failure to do so would be taken into account by the AFA to consider that the Sapin II compliance requirements had been breached.
A toolkit to draft or update gifts and invitations policies when doing business in France
The Guide provides a step-by-step approach to building a gifts and invitations policy that is tailored to the needs and specific risks of the organisation.
The AFA sets out a list of relevant factors to consider, and provides examples of acceptable policies. The guidelines cover offer/acceptance criteria, validation procedures and possible bookkeeping/traceability strategies.
For example, the agency lists relevant standards for the offer or acceptance of gifts or invitations such as merely relying on "reasonableness", (which the agency does not recommend), setting an amount above which an approval is required, or a fixed maximum amount.
The agency’s guidance also suggests "best practices" at the organisational level that go beyond policy drafting, such as ERP integration of gifts and invitations policies or the designation of an individual within the organisation responsible for answering policy related questions and monitoring its effective application.
Guidance on the effective implementation and control of the policy
The AFA also offers advice on the implementation of an entity's gifts and invitations policy. In line with existing guidelines in other jurisdictions, the AFA focuses on:
- The need to "set the tone from the top" by showing the management’s commitment to corruption prevention.
- Training managers and other employees on the policy, to create awareness of the procedures in place and to know what steps should be taken when offering or accepting gifts or invitations, such as asking for advice and knowing how to decline a gift. According to the Guide, the most exposed managers and employees (identified as such by the corporation's risk mapping, e.g. individuals in charge of procurement decisions) should receive specific training tailored to their function.
Finally, the agency emphasises the need to monitor compliance with the policy across an organisation. Policies should include controls for each payment method, and clearly explain how various internal controls work within the organisation in relation to gifts and invitations, from self-checking to controls by the compliance or internal audit teams.
This guidance document is not yet final, as comments from industry groups and NGOs are still being considered, but it shows the AFA's strong willingness to provide direct guidance on how to comply with French law.