French industrial group Bollore on Friday entered into a settlement with the French authorities over a decade-old corruption case in Togo. The holding company admitted to resorting to corruption and breach of trust in order to win the management of the port of Lomé, in Togo. A separate plea deal with three top company executives was thrown out by a judge.
The company was fined $12 million euros ($14.5 million) as part of the deal with the French Parquet National Financier (PNF) announced by the PNF on Friday. The fine of 12 million euros must be paid “to the public treasury under ten days, ”said the PNF in a press release. The Company also undertakes “to have the French Anti-Corruption Agency (AFA) assess the effectiveness of its compliance program for two years and to bear the cost up to a maximum of 4 million euros”.
The Misconduct
The case dates back more than a decade, when Bolloré, a transport, energy and logistics group of companies, reportedly undercharged the Togo government for consultancy work in order to be granted the management the port of Lomé, in Togo between 2009 and 2011.
Bolloré, also used a similar scheme in Guinea in order to be granted the management of the port of Conakry. The case concerning Guinea was reportedly not pursued due to the statute of limitations period.
The company, Chairman Vincent Bollore, a billionaire tycoon, and two other senior company executives, Gilles Alix and Jean-Philippe Dorent, acknowledged this Friday having used the political advisory activities of the Havas subsidiary in order to obtain the management of the ports of Lomé, in Togo, and Conakry, in Guinea, via another of its subsidiaries, Bolloré Africa Logistics, formerly called SDV.
SDV had obtained the management of the port of Conakry a few months after the election to the presidency of Guinea of Alpha Condé at the end of 2010, and had won the concession in Lomé shortly before the re-election in 2010 in Togo of Faure Gnassingbé, who were then both advised by Havas.
An investigation for corruption of foreign officials, breach of trust and complicity in breach of trust was opened by the PNF.
The Executives Liability
Vincent Bollore and the two other senior company executives had negotiated a separate plea agreement with prosecutors in order to have proceedings against them in their individual capacity dropped in the case, in return for a fine of 375,000 euros ($455,000) and a guilty plea.
But although Bollore and the two others admitted wrongdoing in court Friday, the presiding judge rejected their plea agreement, stating that the corruption allegations against them were too serious to be allowed to go away. The judge considered “necessary” the holding of a trial for the businessman.
The fines “suggested by the prosecutor and accepted by the three accused” were too lenient, the judge said, the actions of the accused have “seriously harmed the public economic order” as well as Togo’s sovereignty.
The judge therefore recommended that the three accused should stand trial under criminal charges. Whether such a trial will actually take place is now up to an investigating magistrate.
Compliance Takeaways
The Convention Judiciaire d’Interet Public (Judicial Public Interest Agreement or CJIP), established by the French anticorruption law (Sapin 2), is a procedure which allows a legal person to avoid the holding of a trial by negotiating a financial penalty. Similar to a DPA in the U.S. reaching a CJIP in France, enables the group to avoid a major risk: the exclusion from public contracts. Several countries prohibit companies convicted of corruption from applying for their public contracts, which could have been very detrimental to the logistics branch of the Company, which operates several port concessions in Africa.
Also important to note: in June 2020, the French Minister of Justice issued a circular of guidelines to prosecutors setting out the criminal policy in the fight against foreign bribery. The Circular emphasized the heightened appetite from the French authorities to combat corruption-related offences and to strengthen prosecution against individuals. The Circular openly called for increased prosecution against individuals involved in corruption schemes. Mitigating factors in a prosecution against an individual would include the individual’s criminal record, degree of involvement, their recognition of the targeted facts as well as their level of cooperation. The Circular therefore strongly encouraged corporations to voluntarily self-disclose internal suspicions of corrupt practices.
As a reminder, international corruption has a wide scope under French law, including:
- “Influence peddling of foreign public officials;
- Money-laundering and concealment of the proceeds of a crime (recel);
- Misappropriation of corporate assets and breach of trust;
- Fraud and forgery;
- Publication or presentation of annual accounts that are not true or accurate; and
- Tax”
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