What is happening at the French Anti-Corruption Agency (AFA)? Inaugurated in March 2017 by François Hollande, the structure was to become, as its name suggests, the “policeman” of the fight against corruption. “The exemplary Republic is not a bet on human infallibility. There will always be individual failures. The exemplary Republic is to ensure that faults, shortcomings, weaknesses, will be identified, revealed and sanctioned, indicated the president of the time. This is how we will be able to protect the Republic “Long pointed out by international bodies for its apathy in the matter, France was going to be concerned about it. But six years later, the state of the AFA questions.
In question put to the government in April, the socialist senator Jean-Pierre Sueur was surprised at the vacancy, since July 2022, of the six personalities who made up his sanctions commission. Boring, for a body supposed to punish failures in the fight against corruption. Three days later, its members were finally named in the Official Journal. However, it is still impossible for them to sanction anyone: for that, the director of the agency would have to seize them. However, there is no longer a director: the magistrate Charles Duchaine, who left in March after six years in office, has not been replaced. “The public authorities have neither given the impetus nor expressed the necessary will for the AFA to have the means to operate, believes Jean-Pierre Sueur. There is the feeling of a worrying vacuum for an agency which needs state support.
A French upgrade
The appointment of the successor has been pending since March. It should take place “in the coming weeks, during the summer”, according to the Ministry of Justice. For a president who made the moralization of political life a pillar of his campaign in 2017, these delays are notable.
Created in 2016 by the Sapin 2 law “for transparency, action against corruption and the modernization of economic life”, the AFA had to demonstrate that France takes the fight against corruption seriously. Two years earlier, Paris had been criticized in a report by the Organization for Economic Co-operation and Development (OECD), which expressed concern about “the low responsiveness of the French authorities” and “the weakness of the resources allocated to investigations” in the fight against corruption. “The establishment of the AFA was therefore received extremely positively,” recalls Sandrine Hannedouche-Leric, principal legal analyst in the OECD’s anti-corruption division.
Its prerogatives are broad: placed under the aegis of the Ministry of Budget and Justice, the AFA assists the authorities in the prevention and detection of acts of corruption, influence peddling, or illegal taking of interest . Headed by a non-hierarchical magistrate, the body also has an administrative power of control. It verifies the effectiveness of “compliance” mechanisms – corruption prevention systems – installed by companies, administrations or communities. “By creating an administrative offense in the event of non-compliance, France has gone beyond what was required of the States”, continues Sandrine Hannedouche-Leric.
Send a signal to Washington
The zeal of Paris is not completely disinterested. The creation of the AFA is a response to several cases in which the American Department of Justice imposed colossal fines on French companies, such as Alstom or Total. At the time, if France had a central corruption prevention service (SCPC) dependent on Matignon, it did not have any power of control or sanction. Foreign firms, in particular American ones, therefore regularly launch investigations into the probity of French companies. “It was urgent to send a signal to the Americans. This is what the Sapin II law did by building a legal tool and an obligation to prevent corruption”, recalls Olivier Marleix, deputy Les Républicains, co-author with Raphaël Gauvin for an evaluation report on the text.
The agency’s control covers companies with more than 500 employees whose turnover is greater than or equal to 100 million euros, as well as local authorities. During these six years of existence, the AFA will have for example examined the department of Haute-Garonne, the French Football Federation, or even the National Printing Office, responsible in particular for the creation of identity documents. Between October 2017 and October 31, 2021, 159 controls and examinations were carried out – 108 on companies, 51 concerning public actors.
A sanctions commission seized twice in two years
If companies do not comply with the law, and do not take measures to prevent acts of corruption or influence peddling, they are required to pay a fine to the State, the amount of which can go up to 30 % of their average annual turnover. At the same time, they must also comply with a compliance program that can last 3 years. The procedure, called “judicial agreement of public interest”, is proposed by another body familiar with breaches of probity: the national financial prosecutor’s office (PNF). “The AFA quickly seemed essential to us because it contributed to a rapid change of culture in companies vis-à-vis the fight against corruption, we explain to the PNF. they were forced to take up a subject that they had often neglected until then”. In 2021, the OECD thus presents the agency as a “central player in the fight against corruption in the public and private sectors”, whose arrival has contributed to “a remarkable step forward which has enabled France to regain credibility and visibility in the fight against bribery of foreign public officials”.
However, the action of the AFA is not exempt from interrogations, in particular concerning its commission of sanctions. If the director of the AFA realizes a lack of conformity, he can, initially, decide to seize it. In this case, a fine of up to 200,000 euros for a natural person and 1 million euros for a legal person may be decided. But this possibility has been exploited only twice in six years. In both cases, no financial penalty was imposed.
The stability of the agency in question
A shyness which would be explained by a desire for “pedagogy” towards economic actors. “At the beginning, nobody really knew what the agency should do – apart from Charles Duchaine, who wanted to make it the armed wing of the investigation in the field of corruption, confides one of the former controllers of the AFA. Its agents had been recruited from all over the civil service. We had to harmonize our practices, interpret the Sapin II law, publish recommendations…”
“No one wants to be the one to take the helm of a sinking boat”
If its director has a specific status – for example, it is impossible for the executive to dismiss him during his term of office – the body is not an independent authority, but a ministerial department. A detail ? Not really. “The AFA straddles Bercy and the Chancellery, which is never happy, observes Jean Courtial, former president of the Sanctions Commission. Its resources depend on two ministries, but it has never really had nor the means, nor the opportunity to take its place in the French administrative landscape”. The AFA never benefited from the 70 positions originally planned, its staff fluctuating between 55 and 57 full-time equivalents. “With a lot of turnover, and increased replacement by contract agents. Which is not ideal for the stability of the agency”, continues our former AFA controller. What feed for some the grievances of “negligence” of the executive on the subject of the fight against corruption. “In my opinion, the treatment of the AFA is more negligence than calculation, believes a magistrate. Our leaders obviously have other fish to fry. But we must be careful: do not deal with issues related to corruption , it is to risk multiplying the troubles in terms of public order”.
A fusion with the evoked HATVP
To address these shortcomings, the Gauvain-Marleix report proposed a solution: clearly divide the tasks related to the mission of administrative coordination of the agency – the multiannual plan against corruption, in this case – from administrative controls. It is up to the AFA to be responsible for disseminating information to prevent acts of corruption, while the control missions would be devolved to an independent administrative authority, the High Authority for Transparency in Public Life (HATVP). The proposal, which had made the director of the AFA at the time, Charles Duchaine, jump, was not followed up.
“This story has cast doubt on the future of the AFA, which must partly explain the slowness of the appointment of a successor, believes a former senior official familiar with the corridors of Bercy. No one wants to be one who takes the helm of a sinking boat”. According to information from Letter A, published in March, one name stands out, however: that of Isabelle Jégouzo, magistrate and… Europe and international relations adviser to the Keeper of the Seals, Eric Dupond-Moretti. A counselor pinned down by the HATVP according to Mediapart: until recently, she received a salary supplement paid by the European Commission – of which Isabelle Jégouzo was head of its representation in France – in addition to the treatment she receives at the Ministry of Justice. The HATVP considered that this situation was a matter of conflict of interest, and therefore asked her to put an end to it, which she did. For the moment, the Chancellery refuses to comment on this possible appointment. The announcement should be accompanied in the fall by announcements on an anti-corruption plan, as well as a new probity circular, which was originally due to be published in early 2023. restart the machine?