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Comparing Anti-Corruption in France and Sweden

December 20, 2022

FRA, in collaboration with the Stockholm Centre for Commercial Law, hosted a seminar to discuss the emergence of French and Swedish anti-corruption regulatory environments, driving factors for change in each jurisdiction, and challenges to further progress. The expert panel featured:

  • Biörn Riese, Attorney specialised in corporate governance and sustainability, with particular focus on anti-corruption and risk management
  • Eric Russo , Quinn Emanuel partner, former Prosecutor at the French Parquet National Financier (PNF)
  • Alf Johansson, former Chief Prosecutor of the Swedish National Anti-Corruption Unit
  • Uriel Goldberg, director at FRA Paris, formerly a forensic accounting expert at the French PNF

Shared primary drivers for change, but different rates of progress  

Ten years ago, the OECD Working Group on Bribery issued statements flagging serious concerns with both France and Sweden’s anti-corruption regimes, criticising both countries’ lack of foreign bribery convictions. Today, France is a key player in global anti-corruption enforcement, whereas Sweden received yet another call to action from the OECD (2019) pressing for urgent anti-bribery and corruption reforms.

Back in 2012, the two countries shared several key drivers for regulatory change. In addition to criticism from the OECD, both countries had large companies embroiled in international corruption scandals (such as Alstom in France and Telia in Sweden). These companies were investigated by the US Department of Justice and other international regulators and ultimately paid huge fines in those respective jurisdictions, raising questions domestically about why foreign governments were profiting from France and Sweden’s lack of enforcement activity. Furthermore, this was at a time when Europe was trying to bolster the credibility of its anti-corruption enforcement, including the establishment of the EU Anti-Corruption Report by the European Commission in 2011. The time was ripe for regulatory change in both France and Sweden.

How have Sweden and France’s paths diverged?

Despite these shared drivers, France and Sweden’s paths have diverged significantly over the past decade. Following on from the creation of a national financial prosecutor’s office in 2014, France enacted the Sapin II law in 2016, resulting in several significant changes to its legal approach and heralding the beginning of a much stricter enforcement culture. Sapin II had far-reaching consequences, including:

  • The creation of a new French anti-corruption agency (Agence Française Anticorruption or AFA) which became responsible for advising companies and monitoring compliance with obligations under Sapin II.  
  • The introduction of the convention judiciaire d’intérêt public (CJIP), akin to the deferred prosecution agreement (DPA) in the US, which allowed companies to settle corruption allegations with French prosecutors.  
  • Large companies (turnover exceeding EUR 100 million and more than five hundred employees) became obligated to design and implement anti-corruption compliance programmes.  

Concurrently, Sweden has also made changes to its anti-corruption regime, albeit on a more limited scale – for example, in early 2020 it extended the jurisdiction for bribery offences to include those offences committed in the exercise of business activities of a Swedish company overseas, and it also increased the level of corporate fines possible for bribery offences to make them more closely aligned with those in other countries.

Fundamentally however, France and Sweden’s anti-corruption regimes differ in three key areas, detailed in the following table:

Leading with subject matter expertise
In France, private individuals, public officials and legal entities can all be prosecuted for bribery or corruption. In Sweden however, only individuals may be held liable for bribery as only natural persons can be held criminally responsible under Swedish criminal law. Criminal liability may however apply to the company’s representatives, and companies may still be subject to penalties, including corporate fines, of up to SEK 500 million (approx. EUR 46 million). Company profits linked to bribery can also be forfeited.
Considerations of settlement
In France, companies can enter a CJIP without making an admission of guilt – the CJIP does not mean that a company has been criminally convicted, and therefore it can continue to take part in public procurement tenders. Natural persons cannot enter a CJIP. In Sweden, there is no possibility for an out-of-court settlement; and public prosecutors must commence criminal proceedings to adjudicate any suspicions of breaches of anti-corruption legislation.
Considerations of compliance matters
In France, there is a much greater emphasis on compliance matters. As mentioned previously, under Sapin II, large companies have a legal obligation to design and implement anti-corruption compliance programmes and the AFA regulates the elements thereof. Moreover, senior staff at such companies (such as presidents, directors and managers) can themselves be found liable for the failure to implement compliance programmes, including sanctions of up to EUR 200k (companies can be fined up to EUR 1m). While a compliance program does not act as a statutory defence to bribery/corruption offences under French law, a compliance program (or the lack thereof) can act as a favourable or unfavourable factor respectively in the acceptance of a CJIP settlement or the determination of fines which accompany them. Furthermore, in addition to fines and confiscation of criminal property, companies may be required to adopt anti-corruption compliance programs, which will be monitored by the AFA for up to five years. In Sweden, the lack of an anti-corruption compliance programme is not a crime, and the elements of a compliance programme are not regulated. Like in France, a compliance program does not act as a statutory defence to bribery/corruption offences under Swedish law, however, the implementation of such a programme may reduce the risk of a company receiving a fine or reduce the amount of the fine.

What lies ahead

The fight against corruption is more important than ever, and the reality is that Sweden has unfortunately found itself struggling to put up a good fight. Benchmarking against France illustrates and highlights the different approaches taken to address the OECD criticism, as well as the impacts of the chose paths. What we find is that Sweden lags France in anti-corruption enforcement and is behind the curve in a broader international context as well.

To change the emerging narrative of Sweden being an “exporter of corruption” (Transparency International, 2022), Sweden needs to make up for lost ground in terms of its legal framework and enforcement system – where weaknesses include jurisdictional limits, lack of criminal liability for corporations, inadequate sanctions, and a decentralised organisation of enforcement. Developments in France over the last decade are testament that a fundamental shift of this nature takes time. It is imperative that Sweden makes more progress in addressing the OECD criticism from 2012, which continues to be the country’s Achilles’ heel in terms of its anti-corruption and foreign bribery enforcement. Looking to France for inspiration, some critical aspects would include introducing a legal framework for non-trial resolutions, self-reporting by companies, deterrent sanctions, transparency of outcomes and requirements for companies to take preventative measures. This, of course, would need to be modelled and implemented with the right balance of “Swedish characteristics”.  

The above overview is prepared by FRA director Viktor Josefsson and manager Kezia Hardingham, based on the expert panel discussion at Stockholm University in October 2022.

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