Roger A. Burlingame
London +44 20 7184 7333
New York +1 212 698 3500
This article first appeared in the International Comparative Legal Guide to: Corporate Investigations 2020, published on 7 January 2020.
France continues to actively enforce Sapin II, its December 2016 anti-corruption legislation. Since the enactment of the statute, the lead French investigating and prosecuting agencies, the Parquet National Financier (“PNF”) and the Parquet de Nanterre, have entered into eight deferred prosecution agreements, called Convention Judiciaire d’Intérêt Public (“CJIPs”). Early indications stemming from the conduct of French authorities suggested a future where the French authorities would become active enforcers in complex international fraud and bribery cases. Recent CJIPs leave little doubt that French authorities will continue apace.
On June 27, 2019, the PNF and French Anti-Corruption Agency (“AFA”) published guidelines (the “CJIP Guidelines” or “Guidelines”) for the first time, setting forth conditions companies must meet to be eligible to enter into a CJIP, as well as details about how financial penalties are determined. Though not legally binding, the CJIP Guidelines provide much-needed clarity for companies seeking to resolve an investigation by entering into a CJIP. Among other things, the CJIP Guidelines indicate that French authorities may harshly penalise companies for taking a passive approach in responding to possible wrongdoing, as companies hoping to resolve investigations on favourable terms are expected to perform thorough internal investigations, self-report wrongdoing, and cooperate with the authorities.
Though instructive, the CJIP Guidelines leave certain issues unknown or unresolved, as the Guidelines are currently not as prescriptive as similar guidance issued by the U.S. Department of Justice (“DOJ”) and the UK’s Serious Fraud Office (“SFO”). Nevertheless, the CJIP Guidelines point to significant overlap between the U.S., UK and French deferred prosecution agreement regimes, providing further evidence of the French commitment to joining the ranks of the U.S. and UK in fighting corporate corruption. This article discusses key features of this French regime, as illuminated by the CJIP Guidelines, recent CJIPs, and comparisons to the U.S. and UK approaches, and concludes that in this era of increasing cross-border cooperation between prosecuting authorities, companies with any plausible criminal exposure in France must now seriously contend with and understand Sapin II and the CJIP process in order to both resolve matters domestically and when seeking a coordinated global settlement.
2. Brief Overview of the CJIP Regime
Sapin II was, in part, enacted as a response to both international criticism that France was not enforcing international bribery laws and domestic concerns that multi-million and billion-dollar fines were being paid primarily to U.S. regulators. Sapin II authorises the French Public Prosecutor (including the PNF) to offer and negotiate CJIPs with companies facing a criminal investigation without the risks associated with a public and often lengthy process and trial.
A CJIP can only be concluded for the specific offences of corruption, influence peddling, and laundering of the proceeds of tax fraud and related or “connected” offences, and must be “validated” by a judge during a public hearing. The judge will determine whether the company should be offered a CJIP by determining: (i) whether it is appropriate to enter into a settlement; (ii) whether all procedural rules have been followed during the negotiations between the company and the prosecutor; (iii) whether the fine imposed is lawful (as fines in France are capped at 30% of the annual turnover of a company over the past three years); and (iv) the fine’s proportionality to the gains derived from the company’s wrongdoing. As a general matter and similarly to UK deferred prosecution agreements (“DPAs”), if the judge approves the CJIP, the validation order does not amount to an admission of guilt and does not have the effect of a conviction.
Companies have 10 days to reject the validation order of the CJIP. A criminal investigation and trial will follow if the judge rejects the CJIP or if the company uses its statutory right to reject the agreement. Given the French trial tradition, French authorities should be comfortable taking a company to trial where a CJIP is unavailable or has failed. As with both UK and U.S. DPAs, CJIPs are disclosed to the public by way of a press release, and the fine and validation order, including a brief statement of facts, is published on the website of the AFA.
3. Investigating Wrongdoing
The CJIP Guidelines direct the French Public Prosecutor to evaluate on a case-by-case basis whether a company should be offered a CJIP where it appears in the public interest not to pursue a criminal prosecution and public proceedings have not begun. In order to be eligible for a CJIP, a company is expected to have “actively taken part in revealing the truth by means of an internal investigation or an in-depth audit on the offences and the malfunctioning of the compliance system that facilitated offences.” The CJIP Guidelines further indicate that findings from the investigation or the audit should be shared with the authorities within a reasonable period of time, but do not further specify what is and is not reasonable.
The CJIP Guidelines do, however, make clear that the PNF expects that an internal investigation will, among other things: (1) result in an accurate and comprehensive report describing the offences “with the greatest possible accuracy”; (2) identify the principal individuals and witnesses and provide all relevant documents to prosecutors, subject to rules regarding confidentiality and privilege as discussed in more detail below; and (3) provide prosecutors with reports or transcripts of witness interviews, together with all documents on which those reports or interviews rely.
These expectations make it clear that French authorities are likely to reject and could harshly penalise companies pursuing a traditional approach to criminal defence and the investigation of misconduct. Instead, French expectations are now broadly in line with the U.S. and UK approach to white-collar enforcement. And although there are certain differences, this broad alignment may ultimately simplify the decision-making landscape for companies facing investigations across these jurisdictions.
In France, companies with enforcement issues previously had no incentive to self-report wrongdoing and would traditionally not do so to avoid years of proceedings in French Courts. Post-CJIP, the decision of whether to proactively and voluntarily disclose corporate wrongdoing is a multifaceted question to be worked through carefully with French outside counsel.
Under Sapin II and the CJIP Guidelines, a company does not have a mandatory legal obligation to self-report to the authorities, nor is self-reporting a precondition to obtaining a CJIP. However, the CJIP Guidelines make clear that self-reporting is a key factor to be considered and the authorities will scrutinise any delay in a company disclosing wrongdoing. If any delay is found, authorities will assess any impact the delay may have had on the investigation, including any impact on the preservation of evidence and the risk of collusion.
In practice, it appears that the failure to self-report in a timely fashion has been used as an aggravating factor against a company when calculating a fine but has not been a complete prohibition to entering a CJIP. A number of companies have been able to benefit from CJIPs despite only offering “minimal cooperation” in investigations and failing to disclose facts to French criminal authorities. For example, in the CJIP entered into by SAS Poujaud (“Poujaud”), the CJIP specifically referred to the fact that Poujaud had failed to self-report to the authorities and the company’s failure was considered an aggravating factor in the determination of the appropriate fine to be imposed.
This approach is consistent with the approach in the UK, where the DPA Code states that “considerable weight” will be given to a “genuinely proactive approach” to a company-led investigation, and in the U.S., where the DOJ has made significant efforts to encourage companies to fully cooperate with investigations and to self-report wrongdoing. However, recent cases confirm that a failure to self-report is not fatal to DPA prospects in either country if a company cooperates with the investigating authorities.
French companies should therefore carefully consider self-reporting, bearing in mind that a cooperative voluntary disclosure to the authorities may contribute toward a reduction in any sanction. Where faced with a multi-jurisdictional case with the UK and U.S., it would also make little sense to cooperate and obtain sentencing discounts in those countries while not self-reporting in France. However, although the CJIP provides for methods to calculate penalties, as discussed in more detail below, there is currently a lack of clarity regarding how much a prospective defendant may gain for self-reporting and entering into a CJIP compared to a potential court-imposed penalty, particularly as compared to the regimes in the U.S. or UK. Companies and counsel should continue to monitor this issue and look to new CJIPs themselves in order to evaluate self-reporting issues.
The SFO and DOJ expect companies to fully cooperate during the course of an investigation in order to benefit from a DPA. If a company does not cooperate with the authorities in the UK or the U.S., it is unlikely to be offered a DPA. Under the new CJIP Guidelines, it appears that French authorities are taking a similar approach. In France, cooperation in the criminal investigation is a “prerequisite for entering into a CJIP,” and the “quality of this cooperation will be a decisive factor regarding the abandonment of prosecution proceedings and use of a CJIP. It will also be taken into account in determining the amount of the public interest fine (by application of a mitigating factor).”
Despite this clear guidance, based on decided cases and as in the UK and U.S., failures to cooperate may not act as a complete bar to obtaining a CJIP. Instead, French authorities regard cooperation as a mitigating factor when it comes to assessing sanctions against an implicated company. For example, in May 2018, a French company received substantial credit because it undertook a thorough internal investigation, voluntarily produced relevant documents to the authorities and provided regular updates regarding facts discovered and the status of the investigation. In contrast, in another CJIP, the Court noted the company’s minimal cooperation. However, the PNF recognised that as the investigation had started prior to the introduction of the CJIP system, the French legal system did not provide for a legal mechanism encouraging full cooperation. It remains to be seen whether CJIP Guidelines alter this dynamic and is something to continue to watch.
Interestingly, the CJIP Guidelines do not indicate whether or not cooperation by a company will guarantee that the company be allowed to enter into a CJIP. In contrast, the SFO makes clear, particularly in new SFO guidance published on August 6, 2019, that even “full, robust cooperation” does not guarantee a DPA. However, the SFO Guidance builds on the cooperation provisions contained in the DPA Code of Practice and demonstrates the SFO’s continued efforts to encourage organisations to report wrongdoing and to use DPAs to resolve cases where an organisation is willing to provide extensive cooperation. Similarly, while the DOJ is given “substantial latitude in determining when, whom, how, and even whether to prosecute” a corporation, in doing so, prosecutors can consider factors related to, among other things, a corporation’s self-disclosure, cooperation, and remedial measures as a means to encourage that behaviour.
6. Other Important Considerations in CJIPs
The CJIP Guidelines also provide helpful insight into a number of other issues.
The Guidelines make clear that the assertion of legal privilege and withholding of documentation from the prosecution can meaningfully harm a company’s ability to negotiate a CJIP. According to the CJIP Guidelines, (1) work product created during an external lawyer’s internal investigation will not be covered by French professional secrecy (secret professionnel) as a matter of course, and (2) a company’s failure to provide documents on grounds of professional secrecy can be viewed as non-cooperation.
Despite this tough stance, the PNF also states that it will take into account the risks companies may face in other jurisdictions by waiving privilege. For example, in the U.S. there can be serious consequences if companies facing simultaneous civil litigation and criminal investigations waive privilege. This recognition of effects outside France suggests that a company’s refusal to disclose documents that are privileged under foreign, but not French law, will not necessarily be interpreted as a lack of cooperation.
The French approach to legal privilege varies greatly to the U.S., where DPA guidance explicitly states that cooperation or voluntary self-disclosure credit “is not in any way predicated upon waiver of attorney-client privilege or work product protection.” The UK splits the difference, with the SFO not penalising companies for the justified withholding of privileged information, while reserving the right to view a voluntary decision to waive privilege as a clear indication of the company’s cooperation. Indeed, in April 2019, Lisa Osofsky, Director of the SFO, stated that “waiving privilege over . . . initial investigative material will be a strong indicator of cooperation and an important factor that [the SFO] will take into account when considering whether to invite a company to enter into DPA negotiations.” However, the SFO’s recent guidance indicates that it expects organisations claiming privilege over materials to instruct independent counsel to certify that the material is privileged. This provision is a departure from current practice and an additional burden on companies, and suggests the SFO suspects that some organisations and their legal advisers are misusing privilege. The SFO also expects companies to provide all relevant material in the company’s possession or control held abroad, requiring that an organisation consider the extent to which it has custody or control over documents held by subsidiaries or overseas branches.
Ultimately, in France, companies seeking cooperation credit should be prepared to think proactively about document collection and privilege issues and should anticipate that the company may need to find a way to provide such information, either in non-privileged forms or via waiver. As part of that analysis, companies should consult with their legal advisers across jurisdictions to achieve the right balance and make informed decisions.
As noted above, CJIP resolutions must be validated by a court. If a French court does not approve a proposed CJIP, or if the company exercises its right to refuse the validation order within ten days of issuance, all documents the company provided to the French prosecutor during the CJIP cooperation process are deemed confidential and cannot be used against it. The CJIP Guidelines suggest, however, that materials shared by the company before a proposal for a CJIP is formalised can be used by the PNF in subsequent investigations and proceedings.
This offers companies far greater comfort that the U.S. and UK approaches. In the U.S., prosecutors can use evidence provided during DPA negotiations against the disclosing company (as well as its agents and employees) if settlement negotiations are unsuccessful or if a DPA is entered into and breached. Subject to certain limitations, UK prosecutors can also use documents disclosed during DPA negotiations against the company and its employees/agents if DPA negotiations break down or if the court rejects the DPA agreement.
The CJIP Guidelines explain that companies seeking a CJIP will face difficult terrain if (1) the company or one of its subsidiaries or managers have been the subject of prior sanctions for “offences against probity” by a French court or a foreign authority, or (2) a company has already benefitted from a CJIP or a DPA with a foreign authority. However, the PNF will take into account the lapse of time and the facts that led to prior sanctions. The PNF may also consider the good faith of the company’s representatives where facts not covered in a previous CJIP are later discovered. Similarly, the U.S. and UK also take into account criminal recidivism in determining whether a DPA is justified.
7. Extent of Investigation
In the UK, provided that a company can demonstrate sufficient and ongoing compliance and remediation measures (and/or accept a monitor in appropriate cases), authorities are likely to “draw a line” (to use the SFO’s words) under the conduct at issue if the investigation has already uncovered a sufficiently representative scope of conduct. Similarly, in the U.S., DOJ guidance explicitly notes that cooperation with the authorities can “avoid protracted delays” and “enabl[e] the government to focus its investigative resources in a manner that may expedite the investigation and that may be less likely to disrupt the corporation’s legitimate business operations.”
In France, the PNF takes public interest factors into account and, similarly, can take an overview of the total conduct disclosed to it. In CJIPs to date, the French authorities have speedily brought these investigations to a close in a relatively short timeframe and the PNF has demonstrated its willingness to pragmatically engage with companies to avoid lengthy investigations.
Based on the CJIP Guidelines, it appears that the implementation of an effective compliance programme will be a key factor in making CJIP related negotiations more efficient and effective for the company. Under the Guidelines, French authorities will consider the implementation of an effective compliance programme in deciding whether a CJIP is an appropriate form of resolution. Further, Sapin II requires companies with over 500 employees and revenues greater than €100 million to implement effective compliance programmes. If a company subject to this requirement fails to comply with it, such non-compliance may prevent it from entering into a CJIP; and if one is ultimately offered nevertheless, the non-compliance will be considered in fixing the relevant fine. Similarly, a company not subject to this requirement can increase the likelihood of a CJIP by complying with it. As a result, any French entity, whether subject to the compliance programme requirements under Sapin II or not, can increase the chance of obtaining a CJIP by pre-emptively bolstering its compliance and anti-corruption policies.
Like the French authorities, when making DPA determinations, the DOJ considers the adequacy and effectiveness of a corporation’s compliance programme at the time of the offence, as well as at the time when a settlement is being negotiated. UK authorities and courts similarly consider a company’s compliance and remediation efforts in deciding whether to enter into and approve a DPA.
The upshot is clear: French companies should seriously consider the efficacy and strength of their compliance programmes and should consult with counsel in order to strengthen those programmes in a manner consistent with guidance from all jurisdictions.
In the context of a CJIP, Sapin II imposes a maximum cap on fines of 30 percent of a company’s average annual revenue over the prior three years. The PNF calculates fines as a multiple of the benefit to the company from the criminal conduct. According to the CJIP Guidelines, the multiple is determined by a number of aggravating and mitigating factors. Aggravating factors include: (1) repeated or systemic acts of corruption; (2) the corruption of public officials; (3) prior convictions/sanctions imposed in France or abroad; and (4) the use of the company’s resources to conceal the acts of corruption. Mitigating factors include: (1) self-reporting within a reasonable time; (2) excellent cooperation; and (3) the implementation of an effective compliance programme and remedial measures.
The CJIP Guidelines appear to be inspired by guidance issued by the DOJ and SFO, both of which set out the aggravating and mitigating factors to be considered when assessing fines. Indeed, the CJIP Guidelines state that the calculation of the fine may be subject to input from foreign prosecuting authorities to allow for the global assessment of the fines and penalties to be paid by the company. This, too, is in line with current practice in the U.S. and UK, where coordinated global resolutions are encouraged in order to avoid multiple fines.
Recent history suggests settling under a CJIP will drastically reduce penalties. For example, in September 2019, Google agreed to pay nearly €1 billion in fines and back taxes in connection with France’s seventh CJIP, and while the penalty was substantial, it was less than the tax bill authorities accused Google of evading. As trials in French courts have resulted in substantial fines, the ability to potentially reduce penalties through a CJIP is certainly something that companies should consider with counsel.
The CJIP Guidelines indicate that, similar to the U.S. and UK, French companies can also be subject to monitoring pursuant to a CJIP. The monitoring is to be conducted by the AFA for a period of up to three years, pursuant to a five stage process: (1) the AFA will carry out an initial audit to assess the measures in place within the company to prevent and detect fraud; (2) the company will propose an action plan; (3) the action plan proposed will be approved by the AFA; (4) the AFA will validate the key tools of the anti-corruption programme, will carry out targeted audits and will also prepare annual reports; and (5) the AFA will carry out a final audit and transmit its report to the PNF. If the company has its registered or operational office in France, or if it exercises all or part of its business on French territory, the AFA will act as the monitor and the PNF will keep the foreign authorities updated.
9. Increased Cooperation with Other Authorities
In general, the provisions of the CJIP Guidelines and the broad similarities between the French, UK, and U.S. DPA regimes discussed above are only further corroborative of the ever apparent reality that companies with liability in multiple jurisdictions will likely be forced to and should consider at the outset of an investigation how and when to engage with different regulators and work towards a coordinated global resolution of all outstanding liabilities. The CJIP from May 2018 demonstrates that the PNF is comfortable with working with U.S. authorities as equal partners, and the relationships formed during that case and others will likely lead to further cooperation and joint resolutions. The same will likely be true with the UK. In fact, recent statements from the SFO suggest that it values and will seek to cooperate with authorities in foreign jurisdictions, including France. For example, in a speech given on September 2, 2019 at the Cambridge Symposium on Economic Crime, Ms. Osofsky stated: “We prosecutors simply cannot do our jobs today without working with our counterparts around the globe… Prosecutors all around the world are realising how much we need each other if we are truly to do justice. So we are increasingly linking arms in the march against transnational fraud and corruption.”
But barriers to potential cooperation still remain. The French Blocking Statute (“FBS”), for example, applies to any communication of information that is intended to be used for prosecution by foreign authorities and prevents French companies from disclosing French commercial information to overseas investigating authorities. FBS issues immediately jump to the fore where a company implicated by it seeks to cooperate with/provide information to international prosecuting authorities. Historically, overseas authorities (including the DOJ) have found ways to circumvent the FBS and to neutralise its purpose and effect, but to date, France appears to expect that it be respected. Other variables include whether a French CJIP will forestall parallel or successive prosecutions by other international authorities, and how those authorities will work with the French in those instances.
Nonetheless, where multiple authorities, including France, have an interest in a matter, the PNF appears willing to partner with friendly authorities and cooperate through mutual legal assistance or by forming Joint Investigation Teams. It is likely that going forward, the PNF will continue to build on its relationships with its counterparts in the U.S., the UK. and other countries and use the expanded jurisdictional powers granted by Sapin II to conduct global investigations and levy fines. Once again, companies should therefore be prepared to consider cross-border concerns at the outset of any investigation, including how and when to engage with different regulators and work towards a coordinated global resolution.
10. Enforcement Trajectory
France continues to actively enforce Sapin II. The PNF has proven procedurally nimble and pragmatic in concluding cases with significant financial penalties and establishing themselves as active enforcers in complex international fraud and bribery cases. We anticipate that the PNF is likely to continue to develop relationships with other enforcement authorities going forward and act in partnership with them. Given this new aggressive enforcement environment, companies should be prepared for increased scrutiny and challenges navigating multiple legal regimes, enforcement authorities and procedures. Companies will also need to be increasingly conscious of the evolving guidance—and nuances—around corporate cooperation with regulators, making it all the more important for lawyers representing those companies to have a thorough understanding of the contours of each of the legal regimes in jurisdictions where their clients are subject to enforcement. Finally, given the significance that CJIPs or DPAs can have, it is imperative that companies consult with counsel and fully consider and understand the evolving DPA landscape.
1) French Law No. 2016-1691 of December 9, 2016.
2) The AFA, established by Sapin II, has broad powers and various responsibilities including: (i) ensuring that companies implement a robust compliance programme; (ii) monitoring companies that have entered into CJIPs; and (iii) ensuring that companies comply with Article 694-4 of the French Code of Criminal Procedure, more commonly referred to as the French Blocking Statute.
3) See English version of the Guidelines on the Implementation of the Convention Judiciaire D’Interêt Public (June 26, 2019) (hereinafter “CJIP Guidelines”).
4) See Lynn Robertson, Statement of the OECD Working Group on Bribery on France’s implementation of the Anti-Bribery Convention, OECD Newsroom (October 23, 2014).
5) The French Code of Criminal Procedure – Article 41-1-2.
7) The company will not have to admit any liability provided that criminal proceedings (“action publique”) have not yet commenced. Under French law, the CJIP procedure does not amount to the commencement of a criminal proceeding. However, if a company has been indicted or is under investigation by a French Magistrate (“juge d’instruction”) who then decides to offer to the company the opportunity to enter into negotiations for a CJIP, the company may be required to admit guilt.
8) French Law No. 2016-1691 of December 9, 2016 – Article 22-2.
9) See CJIP Guidelines at p.6.
10) Id. at p.9.
11) Id. at p.9-10.
12) See Convention judiciaire d’intérêt public entre le Procureur de la République près le Tribunal de Grande Instance de Nanterre et SAS Poujaud (May 7, 2018), at p.3, ¶ 6.
13) CPS & SFO, Deferred Prosecution Agreements Code of Practice: Crime and Courts Act 2013 (1st edition) (February 11, 2014), at p.5, ¶ 2.8.2(i).
14) See Rod J. Rosenstein, Deputy Attorney General Rosenstein Delivers Remarks at the 34th International Conference on the Foreign Corrupt Practices Act, The United States Department of Justice: Justice News (November 29, 2017), ¶¶ 41–46.
15) For example, in a CJIP dated 12 September 2019, the settlement value appears to have been less than the maximum potential fine the company could have received absent a settlement. Convention judiciaire d’intérêt public entre le Procureur de la République Financier près le tribunal de grande instance de Paris et SARL Google France et Google Ireland Limited (September 3, 2019).
16) See CJIP Guidelines at p.8.
17) Corporate Cooperation Guidance, SFO Operational Handbook (August 16, 2019).
18) See CPS & SFO, Deferred Prosecution Agreements Code of Practice: Crime and Courts Act 2013 (1st edition) (February 11, 2014).
19) See U.S. Attorneys’ Manual 9-28.200, 9-28.300, 9-28.700.
20) Article 9-47.120 of the FCPA Corporate Enforcement Policy.
21) Lisa Osofsky, SFO Director, Fighting fraud and corruption in a shrinking world, Speech at the Royal United Services Institute in London (April 3, 2019).
22) This provision appears to refer to the decision of R (on the Application of KBR Inc) v. The Director of the Serious Fraud Office  EWHC 2368 (Admin) where the UK High Court held that the SFO can require foreign companies to produce documents held outside the UK, where there is a “sufficient connection” between the overseas company and the UK. The UK Supreme Court has granted KBR leave to appeal this decision.
23) The French Code of Criminal Procedure - Article 41-1-2.
24) The extent to which statements made during the course of DPA negotiations can be used against a company is governed by Rule 408 of the Federal Rules of Evidence.
25) See ¶ 13(6) of Schedule 17 to the Crime and Courts Act 2013.
26) CPS & SFO, Deferred Prosecution Agreements Code of Practice: Crime and Courts Act 2013 (1st edition) (February 11, 2014), at p.9, ¶¶ 4.4-4.6.
27) See CJIP Guidelines at p.7-8.
28) See U.S. Attorneys’ Manual § 9-28.300; CPS & SFO, Deferred Prosecution Agreements Code of Practice: Crime and Courts Act 2013 (1st edition) (February 11, 2014), at p.5 - 6, ¶ 2.8.1 – 2.8.2.
29) David Green, former SFO Director, speech at the Cambridge Symposium on Economic Crime 2017.
30) U.S. Attorneys’ Manual § 9-28.700.
31) Article 17 of Law of December 9, 2016, which came into force on June 1, 2017, defines the companies within the scope of Sapin II as French companies, including subsidiaries, with over 500 employees and revenues greater than €100 million. Law No. 2016-1691 of December 9, 2016 – Article 17.
32) See CJIP Guidelines at p.8.
33) See U.S. Attorneys’ Manual § 9-28.300.
34) See CPS & SFO, Deferred Prosecution Agreements Code of Practice: Crime and Courts Act 2013 (1st edition) (February 11, 2014), at p.5, ¶ 2.8.2.
35) The French Code of Criminal Procedure – Article 41-1-2.
36) It should be noted that while the DPA Code of Practice in the UK suggests that the fine imposed should be discounted by 33%, in a January 2017 resolution with Rolls-Royce, the company received a 50% discount on a £478 million fine owing to its “extraordinary cooperation” with the SFO. It therefore appears that those who secure a DPA in the UK may do so on financially more beneficial terms than those who may otherwise be ordered to pay in the event of a contested prosecution.
37) See, e.g., Sam Schechner, Google Pays More Than $1 Billion to Settle French Tax Cases, Wall Street Journal (September 12, 2019); BBC, Google to pay €1bn to end French tax probe, (September 12, 2019).
38) See CJIP Guidelines at Annex 1.
39) Id. at p.16.
40) Lisa Osofsky speaking at the Cambridge Symposium on Economic Crime 2019 (September 2, 2019).
41) See, e.g., Raphael Gauvain, Report on Restoring the sovereignty of France and Europe and protecting our companies from extraterritorial laws and measures. In the “Gauvain” report, French MP Raphael Gauvain calls for, among other things, the strengthening and modernisation of the FBS in order to further protect French businesses and limit cross-border discovery.