France’s new internal investigations guide

Rahman Ravelli summarises the main points of the guidance published by France’s anti-corruption agency and its national financial prosecutor’s office.

France’s anti-corruption agency (AFA) and the national financial prosecutor’s office (PNF) have published guidance on conducting internal investigations.

It is the second time that the AFA and the PNF issue joint guidance. They previously collaborated on guidance in 2019, when they issued advice to companies regarding what is required to secure a CJIP – France’s equivalent of a deferred prosecution agreement - if they are investigated by the PNF. 

The 2019 guidance highlighted internal investigations as a step that companies should take if an employee informs them of possible corruption. The new guidance builds on this by detailing how and when companies should conduct internal investigations. It also encourages businesses to report wrongdoing to the PNF as soon as any possible misconduct is identified.

So far, commentators have been in broad agreement that the guidance compiles current best practices and legal principles. It is not introducing major change but it is a useful resource for companies. Indeed, the AFA and the PNF have made an effort to provide practical guidance, using relevant examples and case law references to address some of the questions that can arise regarding internal investigations. 

The guidance reminds companies that they must inform employees when they are under investigation, and that they are not allowed to collect employees’ personal emails or bank account statements for possible use as evidence. 

It emphasises both the need for companies to respect the privacy rights of individuals and the presumption of innocence. It also makes it clear that when conducting investigations, companies must comply with EU General Data Protection Regulation (GDPR) regarding the gathering of digital evidence. To that end, the guidance describes circumstances where companies may be at risk of infringing data protection requirements during internal investigations - and it proposes ways to deal with such situations. 

The guidance is an indicator of the increasing trend for French companies to conduct internal investigations, share evidence and cooperate with investigators at an early stage when wrongdoing is identified. This is a development that has occurred since 2016, when France introduced its CJIP (Convention Judiciaire d’Intérêt Public), whereby companies can receive more lenient treatment for cooperating with the authorities.

While the latest guidance can be viewed as encouragement to companies to share the findings of their own investigation with the authorities, it does not make it clear precisely what benefit – in terms of lenient treatment – a company would receive for doing this. It also does not detail how the PNF and AFA will address the issue of attorney-client privilege, which can be crucial as internal investigations may often be conducted by an attorney. The guidance also does not explain exactly what documents a company should make available when cooperating with the authorities. 

The draft document  is open to public consultation until 8 April 2022. No publication date has yet been announced for the finalised version of the guidance.