Glossaire de qualifications

Bribery of a public official is defined as the act by which a person invested in a specific function, public or private, solicits/proposes or approves/transfers a gift, an offer or a promise in order to accomplish, delay or omit act coming into force in the framework of these functions in a direct or indirect way. The offence of corruption is provided for in articles 433-1 and 433-2 of the penal code.

The offer of monetary sums to a civil servant, even if not accepted, constitutes active bribery while passive bribery consists of trustee of a public authority abstaining or acting positively."

"Anyone who, as a result, has incited bribery or has knowingly prepared, facilitated or aided the execution of a bribe may be found guilty of aiding and abetting bribery in accordance with the provisions of article 121-7 of the penal code":

"The accomplice to a felony or a misdemeanour is the person who knowingly, by aiding and abetting, facilitates its preparation or commission.",

"Any person who, by means of a gift, promise, threat, order, or an abuse of authority or powers, provokes the commission of an offence or gives instructions to commit it, is also an accomplice."

Private bribery:

For there to be so-called private bribery:

• There therefore must be an absence of public official;
• The “corrupt person must work within the framework of a professional or business activity
• And the profit must benefit a person (natural or legal, non-profit, etc.) belonging to the private sphere.

Trafficking influence is defined as "the direct or indirect request or acceptance without right and at any time of offers, promises, donations, gifts or advantages, when done by a person holding public authority or discharging a public service mission, or by a person holding a public electoral mandate"

• to carry out or abstain from carrying out an act relating to their office, duty, or mandate, or facilitated by their office, duty or mandate,
• or to abuse their real or alleged influence with a view to obtaining from any public body or administration any distinction, employment, contract or any other favourable decision. 

The offence of trafficking influence is provided for by article 432-11 of the penal code.

Unlawful taking of interest  is defined as the taking, receiving or keeping of any interest in a business or business operation, either directly or indirectly, by a person holding public authority or discharging a public service mission, or by a person holding a public electoral mandate who at the time in question has the duty of ensuring, in whole or in part, their supervision, management, liquidation or payment. The offence of unlawful taking of interest is provided for in articles 432-12 and 432-13 of the penal code.

Favouritism is defined as any person holding public authority or discharging a public service mission or holding a public electoral mandate or acting as a representative, administrator or agent of the State, territorial bodies, public corporations, mixed economy companies of national interest discharging a public service mission and local mixed economy companies, or any person acting on behalf of any of the aforementioned to procure or attempt to procure for another person an unjustified advantage by an act contrary to the legislative or regulatory provisions intented to guarantee freedom of access and equality of candidates in public contracts and public service delegations. The offence of favouritism is provided for in article 432-14 of the Criminal Code.

Politically Exposed Persons (PEP): Politically Exposed Persons are natural persons who hold or have held important public offices, not necessarily in the political sphere and who may be linked to significant decision-making power, or persons who are closely linked to such persons. The PEP offices are listed in article R.R.561-18-I of the French Monetary and Financial Code (MFC).

The 4th directive broadened the notion of Politically Exposed Persons (PEPs) and now includes senior executives of international organisations as well as persons who exercise or have held important public office nationally (“national PEPs”) or internationally.

PEPs constitute a public risk due to their influence and ability to act as proxies for money laundering, financing terrorism or helping those they wish to. An obligation of increased vigilance is imposed on companies working with such persons or for businesses with natural or legal shareholders with this status.

As part of due diligence, Dickson Constant must ensure that this obligation is met. Before entering into a business relationship or carrying out a transaction, professionals must identify the client, or the beneficiary of the transaction. In particular, they must verify their identity on the basis of any supporting written document (art. L. 561-5 of the MFC) and collect all information on the object and nature of the planned transaction (art. L. 561-6 of the MFC).

Conflict of interest. A conflict of interest is defined as any person exercising a professional activity or public authority official entrusted with a public service mission, an elective mandate, placing themselves in a situation which could give rise to a doubt over the motives of their decisions.

"Conflicts of interests may arise when the private interests of an individual or their close relatives, friends or business contacts diverge from the interests of the enterprise or organisation the individual belongs.

These situations should be disclosed and, wherever possible, avoided because they can affect an individual’s judgement in the performance of their duties and responsibilities. Enterprises should closely monitor and regulate actual or potential conflicts of interests, or the appearance thereof, of their directors, officers, employees and agents and should not take advantage of conflicts of interests.

If their contemplated activity or employment relates directly to the functions held or supervised during their term of office, former public officials may not be hired or engaged in any capacity until a reasonable periof of time has elapsed after they have left office. Where applicable, restrictions imposed by national law must be respected.

Thus, any investment in a competitor, a supplier or a customer or a professional activity must be the subject of a prior declaration to their superiors. Indeed, this type of situation can alter the objectivity that is incumbent on all employees when engaging the company.

In other circumstances, the conflict of interest may be characterised by the employee having any link with a third person or a third party company.   In this case, the employee must inform their superiors of the existence of this link before any decision is taken and refrain from any interference in the decision-making process.

Example: My wife runs an industrial cleaning company recognised for the quality of its services. In my capacity as purchasing manager, can I offer the performance of this service, given that her company represents the most interesting offer? You can submit this offer for consideration. However, all the same you must inform your superior of your relationship with the manager of the company so that the decision is taken in an objective and informed manner and you must refrain from participating in the decision-making process and the validation of the invoices of this third party."

Sexual harassment: Sexual harassment is characterised by repeatedly forcing a person to say or behave with a sexual connotation which:

• violating their dignity because of their degrading or humiliating character,
• or creating an intimidating, hostile or offensive situation.

Is any form of serious pressure (even not repeated) with the real or apparent aim of obtaining a sexual act, for the benefit of the perpetrator or a third party.

In the professional environment, there is sexual harassment even if there is no hierarchical relationship between you and the perpetrator (between colleagues at the same level, from different departments, etc.)

See Rules of Procedure article 16 which makes reference to article L1153-1 and following the Labour Code.

Moral harassment : Moral harassment manifests itself in repeated malicious acts: derogatory remarks, intimidation, insults, etc.

These acts lead to a sharp deterioration in the working conditions of the victim, and:

• violating their rights and dignity,
• altering their physical or mental health,
• or compromising their professional future.

If you are the victim of moral harassment, you can benefit from the protection of the law, whether you are an employee, trainee or apprentice.

These actions are prohibited, even if there is no hierarchical link between you and the perpetrator.

See Rules of Procedure article 17 which makes reference to article L1152-1 and following the Labour Code.

Misuse of Company Assets: Managers (article L 241-3, 4° of the commercial code), the chairman, the administrators or the general managers (article L 242-6, 3 °) using goods or the company's credit in bad faith, a use that they know is contrary to the company’s interests, for personal purposes or to favour another company or business in which they are directly or indirectly linked to. All in all, it is an offence of illegitimate appropriation, bordering on abuse of trust, which can affect all types of employees.

Difference between theft and scam

Breach of trust is distinguished from scam. In a breach of trust, there is no initial fraud. The perpetrator has a real right to the property concerned. Fraud occurs if the perpetrator makes it appear that they have a right to the property (for example, if the perpetrator withdraws money from the victim's account with a false power of attorney).

Breach of trust is distinguished from theft. In an abuse of trust, the victim voluntarily handed over the property to the perpetrator or allowed the perpetrator to dispose of this property. There is theft if the property was taken by the perpetrator without any consent and without the voluntary handing over by the victim.

The accomplice is punishable in accordance with the rules of common law, that is to say that they must have been aware of the elements of the criminal offence charged against the main perpetrator and have committed positive acts. However, it does not matter whether the accomplice for their part does not have the status of de jure or de facto leader, required only at the level of the principal perpetrator.

Endangering other persons is defined in article 223-1 as: “the direct exposure of another person to an immediate risk of death or injury likely to cause mutilation or permanent disability by the manifestly deliberate violation of a specific obligation of safety or prudence imposed by any statute or regulation is punished by one year's imprisonment and a fine of €15,000.",

The employer with a responsibility for safety can be criminally prosecuted for endangering other persons.

Discrimination: Discrimination is defined as the unequal and unfavourable treatment applied to certain people on the basis of their ethnicity, name, sex, physical appearance or their membership in a philosophical, trade union or political movement.

Making a distinction between employees (or between candidates for recruitment or access to an internship or a period of training in a company) on grounds other than the necessities of the job or the professional qualities of the employee constitutes discrimination prohibited by law. 

This covers discrimination based on one of the grounds mentioned in Article L. 1132-1 of the Labour Code: 

• race
• sex
• morals
• sexual orientation
• gender identity
• age
• family situation or pregnancy
• genetic traits
• actual or assumed belonging or not to an ethnicity, nation, race or religion
• political beliefs
• trade union or mutual benefit company
• religious beliefs
• physical appearance,
• family name
• place of residence
• physical health or disability
• a specific vulnerability resulting from the concerned person’s economic situation, apparent or known to the offending party
• loss of autonomy
• the ability to express themselves in a language other than French,
• bank domiciliary (this criterion was added to the list of discrimination criteria prohibited by law from 28 February 2017, in force from 2 March 2017)

Theft

Theft is defined in article 311-1 of the penal code. It is “the fraudulent appropriation of a thing belonging to another person."

Sources: www.legifrance.gouv.fr, www.service-public.fr; www.justice.gouv.fr; www.cercle-ethique.net; www.travail-emploi.gouv.fr