New measures to prevent the risk of corruption and conflict of interest in France

In July 2015 the French Minister of Finance and Public Accounts Michel Sapin, presented a communication on government action in favor of transparency and probity for economic and financial players.

Transparency and probity for economic and financial players are economic and moral imperatives that have, in recent years, led to a major mobilization in the fight against fraud and tax optimization.

The Government has therefore decided to initiate a number of priority projects supporting this approach. Some of these projects will require a legislative translation in a bill for the transparency of economic life.

This bill will be presented to the Council of Ministers in late March. Additional measures will be included in the draft law in preparation.

The main axes are:

  • The creation of a national agency to fight against corruption
  • Better protection for whistleblowers
  • The creation of a national register of lobbyists
  • An anti-tax optimization plan for large companies
  • Hardening of anti-money laundering system

In the current state of discussions on this draft law, it appears that this text was strongly inspired by the Anglo-Saxon procedures such as the 1977 Foreign Corrupt Practices Act (FCPA) in the United States and more recently the 2010 Bribery Act in the UK.

If based on the English example, the provisions which would apply to businesses could be:

  • Establish a code of conduct
  • Conduct a risk map of corruption and “at risk” people
  • Implement a monitoring and verification procedure (in particular, the integrity of clients, suppliers, partners and intermediaries)
  • Raise awareness for “at risk” employees through training

To ensure a transparent relationship between economic actors and policy-makers, a legal and ethical framework will also be given to the activities of interest representatives from government authorities.

Moreover, France should also have new tools to crack down on acts of corruption. In particular, the structure of the existing central service of prevention of corruption. Its missions are expected to evolve on the one hand, to enhance the detection and prevention of corruption, and on the other hand, to promote prevention of relapses, thanks to measures inspired by monitoring Anglo-Saxon procedures.

What impact on the pharmaceutical industry?

This law, if passed, will apply to all economic sectors and therefore to the pharmaceutical sector as well.

However, in France, specific provisions such as Article L.14113-6 of the Code of Public Health (“Loi DMOS”) or Article L.1453.1 of the Public Health Code (Disclosure of transfers of value) already apply to the health industries by imposing their monitoring procedures for their relationships with healthcare professionals.

Could these measures, on top of other pharmaceutical requirements on other processes such as promotional material or medical information requests, meet the requirements of this future law?

As such, it is interesting to recall the English example: following the publication of the anti-corruption law in 2011, the UK Ministry of Justice (MoJ) and the ABPI, through its Code of Practice for the Pharmaceutical Industry, have issued a memorandum (1) which recognized, for this sector, the existence of specific provisions already in place. The MoJ therefore admits that the application of this code of ethics enables to meet a number of provisions of the Anti-Bribery Act, saving pharma companies duplicating their control processes.

Also, it will be essential to follow parliamentary debates to ensure that the specificities of the pharmaceutical industry will be taken into account in the future anti-corruption law. The risk is indeed that healthcare industries have to manage two provisions, one under the law of transparency of economic life and the other under the provisions specific to transparency in the healthcare industry!