Sapin 2 law and negotiated justice: the adjustments proposed by deputies Gauvain and Marleix

This is the question that MPs Raphaël Gauvain and Olivier Marleix, authors of an evaluation report on this law, were invited to answer during a conference-debate led by Astrid Mignon Colombet, partner in the cabinet of lawyers August Debouzy.

“We found that companies are extremely supportive of strengthening the fight against corruption and the CJIP. Gone are the days when the first reflex was to say ‘if we do that we will lose competitiveness’. Companies understand very well that if they do not have these high standards and ethical requirements they lose business. Which may not necessarily be the case for local authorities,” observes Raphaël Gauvain.

Genesis of the CJIP

Inspired by the agreements of the American and British Deferred Prosecution Agreement (DPA), the Judicial Convention of Public Interest (CJIP), the famous “French pleader”, constitutes a major revolution in our criminal procedure created by the law known as “ Sapin 2” of December 9, 2016, relating to transparency, the fight against corruption and the modernization of economic life. Since then, this form of penal transaction, without real acknowledgment of guilt and only reserved for legal persons, has undergone several developments.

This alternative measure to criminal proceedings is therefore applicable to companies, associations, local authorities, etc., accused of acts of corruption, influence peddling, tax evasion, laundering of tax evasion and any related offence.

It is the French Anti-Corruption Agency (AFA), an authority created by the Sapin 2 law with around sixty employees, and the French National Financial Prosecutor’s Office (PNF) who are piloting the procedure. This duo is a French specificity that disturbs some foreigners.

The CJIP can be executed for acts prosecuted in another country. Two examples of transnational CJIPs have already been signed, showing a great effort of cooperation between the American DOJ (Department of Justice) and the PNF (French National Financial Prosecutor’s Office).

Critics of a procedure with many unknowns

“One of the difficulties we encounter is that today we do not have, in positive law, full and complete guarantees of reaching the end of the CJIP process”, indicates Me Astrid Mignon Colombet . According to her, “the conditions of cooperation in the judicial investigation and the transactional discussion could be further specified by the texts”. Nothing is specified in the Sapin 2 law itself. However, the company must however be confronted with the investigation of the Public Prosecutor’s Office and in fine, with a proposal for the amount of financial penalty, which is established according to criteria still not very specified. For the lawyer, “there are still a number of inaccuracies that could be clarified”.

Furthermore, it also underlines the need to “develop a culture of negotiation in our French criminal procedure. In our negotiated justice tools, we have until now essentially found appearance on prior admission of guilt (CRPC, editor’s note) which allows, if necessary, a discussion on the sentence, whereas the CJIP – which does not entail an admission of guilt – opens up other perspectives for discussion,” explains Astrid Mignon Colombet.

Recommendations of the two deputies

In their information report devoted to the assessment of the impact of the Sapin 2 law, delivered on July 7 to the legislator, the deputies Raphaël Gauvain and Olivier Marleix formulate several proposals likely to answer the questions raised by the articulation between the CJIP reserved for legal persons and the procedures against natural persons, as well as the consequences resulting from a transactional failure.
Among them, a measure proposes to transfer the missions of control and advice from the AFA to the HATVP (High Authority for the transparency of public life) by creating a new public player endowed with more resources.

“The objective is to rationalize the institutional architecture a little”, specifies Raphaël Gauvain because “we observe that the AFA does a lot of things, some of which badly”. An expression deemed “a little harsh” by Olivier Marleix, who nevertheless considers that the AFA “sin as a government service”.

In fact, MEPs recommend returning “to a slightly more traditional operating system” where everything relating to the regulation of the economy is entrusted to an independent but single administrative authority which would bring together the HATVP and part of the AFA “to make it a single authority which would be called the High Authority for Probity”, then to make the AFA a simple “service under the hierarchy of the Government, to stimulate a real policy of the fight against corruption”.

“We really need an authority that will lead this corruption prevention policy, and that the AFA does not do enough,” said Olivier Marleix.

Another measure calls for the strengthening of negotiated justice, and particularly of the CJIP, in particular with the extension of its domain to the offense of favouritism.

However, the cornerstone of their report is about something else. The two deputies ask above all that the obligations towards public actors be reinforced – “this is where the shoe pinches” according to Olivier Marleix – and that they no longer find themselves faced with a double interlocutor (the HATVP for elected officials and the AFA for communities). “And at a time when public money is flowing, especially in local communities, there is the need to put in place a real anti-corruption policy in the private sector, as in the public”, adds Raphaël Gauvain. Unfortunately, “there is still the reflex to put things under the rug in the public sector and there is a real cultural effort to be made to strengthen general ethics” denounces the MP.
Some of these recommendations on this cross-partisan and “very important” subject could thus appear in an upcoming bill.