The extra-territorial reach of the FCPA and its impact are perhaps no better evidenced than by the colossal fines paid by Siemens in 2008.
But what are European states doing to enforce their own national law and in particular the implementation the OECD Anti-Bribery Convention?
According to Transparency International’s latest progress report (September 2012) on the enforcement of the OECD Anti-Bribery Convention, Germany is active in its enforcement, as are Denmark, Italy, Norway and Switzerland. The U.K. is also active and the long awaited Bribery Act has created a great deal of interest and publicity.
France, however -- the world's fifth largest and Europe's second largest economy -- is absent from this top tier.
TI’s report states that France remains in the category of countries where enforcement is only moderate. Indeed, with only 24 enforcement cases (just 6 of which are major), France trails several bordering states and is significantly behind the United States, the leader of enforcement. The report indicates that the speed at which cases brought by prosecutors proceed in the French judicial system is extremely slow, and it is uncertain whether penalties will be “proportionate and dissuasive,” as called for by the Convention. There is also the failure to criminalize ‘trading in influence’ in connection with foreign public officials, and the maximum fine of €750,000 ($1 million) is deemed too small compared to the proceeds of bribery.
The release of these findings comes only a few months after France received relatively poor press in TI’s report on Money, Power and Politics.
But let's remember that France has a restrictive view of the liability of legal persons, especially in comparison to the United States where the notion of respondeat superior has been enshrined.
And yet there have been positive enforcement developments in France.
The anti-bribery legislation was reformed in May 2011 to make it easier to prove the corrupt act.
There's potential for there being no need to have an official complaint or report to start a prosecution.
Although the French legal system has been traditionally opposed to plea bargaining, TI believes that concept may advance the battle against bribery in France by helping to expedite the resolution of cases.
The FCPA Blog recently brought us news of French defense and security firm Safran being fined 500, 000 euros by a court in Paris for bribing government officials in Nigeria.
And finally, we can note that French civil society groups are actively fighting graft. TI France continues to make headlines in the affair known as the “Bien mal acquis.” Indeed, with fellow civil society organisation Association Sherpa, TI initiated proceedings against several African heads of state and family members suspected of using state assets to acquire property in France.
Philip Fitzgerald is a contributing editor of the FCPA Blog.