“You Don’t Do It, So I Will”: Transatlantic Dialogues on the Fight Against Corruption

While Europeans’ attention was absorbed by US negotiations with Russia, the White House took a little-noticed but consequential action in the fight against corruption. On February 10, President Trump placed a temporary halt (180 days) on new investigations or enforcement actions for breach of US law targeting international corruption, with some exceptions. This step is part of a broader decision to review the guidelines on international corruption investigations and enforcement. The logic of protection of the country’s security and competitiveness was thus confirmed, since the requirements of existing US law put domestic companies at a disadvantage. Further, the president's decision was announced just a few days after Attorney General Pamela Bondi released a memorandum prioritizing investigations into cartels and transnational criminal organizations for violations of the law in question.

Beyond any partisan analysis, it is important both to contextualize these decisions and to assess their potential consequences to US-French judicial cooperation in the fight against international corruption.

The United States was the first country to adopt a rigorous law on international corruption, or corruption of a foreign public official. The adoption of the Foreign Corrupt Practices Act (FCPA) in 1977 was a reaction to the Watergate scandal. At that time, US companies paid hundreds of millions of dollars to public officials abroad to obtain or retain business. The law does not address domestic corruption. For the first 20 years after it went into effect, the law restricted the ability of US companies to do what companies in other countries did blithely—namely, pay bribes abroad.

At the time, outside the United States, bribery of foreign officials was generally viewed as an acceptable way of doing business in certain countries. This behavior even deserved a reward in the form of a tax benefit. To counter this tendency, the United States initiated an even more pervasive change, proposing that its strict rules apply to all developed countries within the OECD. As a result, the OECD adopted an  anti-bribery convention in 1997.

If the United States seems to be going counter to its history today, it is signaling that the global landscape has changed, with countries that are now economic powerhouses but are not bound by the OECD convention. The FCPA remains in force, but a time for reflection has begun, the outcomes of which no one can, in good faith, foretell.

Beginning in the 2000s, prosecutions for FCPA violations intensified. At the same time, the extraterritorial application of the law was felt by foreign companies that had to pay sizable fines in the United States. This activism provoked a reaction from France, as it considered the use of the FCPA an expression of interference or “trade war” disguised as protection of fair commercial practices.

Fines imposed by the United States on many French companies resulted in the French anti-corruption law of 2016, the Sapin II Act. Thanks to this law, France now has an effective anti-corruption arsenal, including a non-trial mechanism (Convention Judiciaire d’Intérêt Public, CJIP), similar to the US Deferred Prosecution Agreement.

Thus the United States and France, until then in an antagonistic relationship (with the United States too active and France too passive), started speaking the same language. A phase of cooperation began, culminating in 2020 in an exemplary judicial cooperation on the Airbus bribery  case: in the execution of three agreements, the company paid €3.6 billion in fines in France, the United States, and the United Kingdom. Since 2016, France and the United States have continued a peaceful dialogue and productive cooperation, carried out by France’s Financial Prosecutor's Office (Parquet National Financier) and the US Department of Justice, with the aim of effectively prosecuting cases of international corruption. 

As of today, this relationship, based on trust, remains robust. However, trust can quickly be compromised. Clearly, neither side would benefit if France and the United States were to begin to fight again to protect their respective companies rather than making them more virtuous.

With the Sapin II Act, France has also strengthened the possibility of prosecuting offenses committed abroad, not only by French companies, but also by economic entities active in France. It is up to the prosecutors and judges to provide substance to these provisions, which until now have been applied with moderation.

Nevertheless, a door is open: the legal basis exists in France to prosecute offenses committed abroad by US companies if they have a significant link with France.

Some years ago, prior to the adoption of the Sapin II Act, a representative of the US Department of Justice explained to the French minister of economy and finance that the reason for US activism was French inactivity: “You don’t do the job, so I do it.” Will the conditions for a role reversal be met? One can only hope that the substantive cooperation between the two countries will be stronger than any hasty reaction to a temporary decision. History unfolds over the long term.