With the law of December 9, 2016 on transparency, the fight against corruption and the modernization of economic life, known as “Sapin II”, the legislator has defined a strong anti-corruption benchmark, inspired by international standards. This law also created the French Anti-Corruption Agency (AFA), which has been entrusted with the task of monitoring and advising public bodies in particular.
In 2019, AFA opened 36 inspections, 16 of which concerned public bodies.
We will begin by attempting to characterize the phenomenon of corruption in France, before examining the preventive measures advocated by the AFA, as well as their effective implementation by local public players.
The term “corruption” in its general sense is commonly used to refer to various forms of bribery (corruption, influence peddling, illegal interest-taking, pantouflage, misappropriation of public funds, favoritism and concussion), but it should be noted that there is a legal term that covers all these offences, known as “offences against probity”.
Breaches of probity are not peculiar to the current period, they have no doubt always existed, but the current period is characterized by the fact that society is coming to terms with them less and less, and as citizens’ demands have grown: in 2018, public prosecutors dealt with 823 cases involving these offenses, which constitutes an increase of 24. 5% on 2013. Corruption accounts for the bulk of convictions, with 45.8% of cases.
Below is a breakdown of probity convictions in 2018:
Alongside the measurement of sanctions, which in itself shows the importance of the corruptive phenomenon, there is a measure of the public’s perception of corruption: since 1999, the European Commission has been compiling a “Corruption Perception Index”. Eurobarometer, at regular intervals, the latest vintage being 2019which measures the degree to which European citizens perceive corruption. Data by country provide a European perspective.
We now turn to the AFA’s framework for preventing corruption in the public sector.
This framework is made up of a number of elements, which we will briefly describe below.
The AFA’s 2019 annual activity report paints a rather pessimistic picture of the public sector’s commitment to anti-corruption, and speaks of “rather low maturity” on their part. However, this is just one of the lessons learned from the few controls that have been carried out.
Prevention and detection measures and procedures are described as “scattered and incomplete”, and are not based on risk mapping.
Legal obligations in terms of ethics are unevenly applied, and risk management is underdeveloped: very few risk maps or codes of conduct have been set up by public-sector players.
To go into more detail, we can examine
The analysis report on this survey describes prevention measures as little-known and poorly deployed.
The main survey data are summarized in the following table:
Only 7.3% of local public bodies have an anti-corruption plan, and – as the report points out in the text – even if such a plan exists, not all the components contained in the Sapin II law have been deployed.
One of the data from this AFA survey that may lead us to wonder is the assessment of local public sector agents’ knowledge of offences against probity.
In fact, only 27.6% of survey respondents said they could define 3 breaches of probity. So, even if most officials seem to be able to define corruption, the other offences against probity are not yet uniformly known.
Lack of knowledge on these issues seems to be an obstacle to the effectiveness of an anti-corruption plan: a whistleblower can only denounce a fact that he knows to be an offence, and management bodies can only get involved in preventing corruption by knowing about offences and their qualifications.
It is also interesting to note (as does the survey analysis report) that 71.2% of entities with no anti-corruption plan or measures justified themselves by qualifying the risk as low or under control. Yet, surprising as it may be, only 1 .7% of entities have carried out risk mapping. Under these conditions, to assert that the risk of corruption is low without even researching it is unfounded.
The usefulness of risk mapping is demonstrated by the fact that 58.2% of entities that have carried out risk mapping have strengthened their internal controls as a result.
It seems that public players have an unexplained and unfounded confidence in the integrity of agents and elected representatives. An anti-corruption plan would be a pointless exercise, whereas respect for the principles of ethics and probity is a guarantee of the proper allocation of public funds and the smooth running of the administration. A solid anti-corruption plan will also enable agents to avoid the criminal and disciplinary risks that punish breaches of probity.
It should be noted, however, that there are a number of other obligations aimed at preventing breaches of probity, which are in line with the Sapin 2 law and the AFA’s recommendations. So it was not easy for local authorities to understand how best to draw up an anti-corruption plan.
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