While the new requirements resulting from the Sapin 2 law have been received with some apprehension by companies, due to the magnitude and depth of regulatory control, their concerns can be partially allayed
by the publication in February 2018 of the details of the AFA’s framework of regulatory control (questionnaire and list of documents to be provided).
A clear framework and transparency regarding AFA's regulatory role
This questionnaire and the list of documents to be provided during an inspection complement the previously issued recommendations regarding the implementation of an efficient anti-corruption program internally and are part of a constructive effort to ensure the quality and effectiveness of the whole framework put in place to prevent and to detect corruption and bribery.
The 163 questions of the AFA document are structured and focus on:
- mobilization of resources within companies to efficiently organize and implement an anti-corruption program, notably with a dedicated structure and competent staffs to ensure its operational efficiency;
- the involvement of top management (“tone at the top”), particularly in allocating sufficient resources needed to implement the recommended framework;
- the review of the eight recommended provisions, constituting an efficient anti-corruption program within organizations.
An administrative inspection rather than a judicial proceeding for corruption
Through the publication of the recommendations for such anticorruption program, the rights and duties of entities subject to an inspection, and lately the framework governing those inspections, the regulator AFA carries out in full transparency its duties and regulatory powers; i.e. to ensure that all economic actors comply with its professional obligations set by law.
The inspections, that will be announced ahead of time, will be conducted initially based on document review – an analysis of the completed questionnaire and documents provided by the inspected entity; then followed by an on-site-inspection, if the regulator deems it necessary, to verify the accuracy of the provided information.
On completion of the inspection, the regulator will issue recommendations aiming at improving of the existing anti-corruption program. In case of substantial non-compliance, the Sanctions Committee could be called upon to issue an administrative warning or financial penalties.
The inspections triggered by the regulator should not be construed as suspicions of corruption or wrongdoing towards the interested party. Indeed, a clear distinction should be established between administrative inspections designed to ensure compliance with regulatory requirements and a judicial proceeding based on suspected corruption.
It is the responsibility of the Financial Prosecution Office (Parquet National Financier) to open a preliminary investigation or judicial inquiry, in the event of any suspected activity or allegation of corruption identified. Such procedures involving thorough searches, documents, email seizures and interrogations conducted by seasoned investigators seeking evidence, would be far more cumbersome.
Cooperation and adjustment of the anticorruption program in place
With all the above-mentioned considerations, companies should address administrative inspections in a constructive and cooperative spirit, rather than being overly alarmed. After all, it is also an opportunity for those being inspected, to gauge in a substantiated fashion where their anticorruption program truly stands, vis-à-vis regulator’s expectations; and to operate the necessary adjustments.
With such an ambitious anticorruption framework imposed by the regulator, along with the required effort to drive the change management, companies should address this undertaking with the appropriate expertise, experience and tools to optimize resources allocated and budget spent.
The regulator’s stance towards cooperative approach during inspection, would contribute, to an extent, to this resources optimization when rolling out an efficient anticorruption program.