3 lessons learned from the Imerys decision
Decision of the French Anti-Corruption Agency's (AFA), 7 February 2020
On 7 February 2020, the French Anti-Corruption Agency's (AFA) Sanction Commission issued its second decision. It concerns Imerys.
The Imerys decision provides an important insight on three elements:
- Risk mapping does not necessarily have to be updated annually and the organization is free to determine the functions or businesses involved and the level of granularity of its mapping according to the specificities of its activity.
- The code of conduct may validly consist of several documents, but all the headings provided for by the Sapin II law must be included, and the code must be incorporated into the internal rules of the entities concerned. Failure to do so is recognised.
- Accounting procedures should be established by setting up specific accounting control points. A second infringement is recognised in this respect.
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The director of the AFA had identified three breaches of Article 17 of the Sapin II law against Imerys. The breaches concerned the risk mapping, the code of conduct and the accounting control procedures.
- Concerning the risk mapping:
Imerys was criticized by the AFA for not following its recommendations. The Sanction Commission rejected any failure to do so. It notes that only failure to comply with Article 17 of the Sapin II Law is liable to penalties.
The Sanction Commission notes that companies are free to choose the functions or professions that they consider representative of their activity, or the managers that they consider capable of expressing useful opinions on risk scenarios. Around 100 managers from Imerys' various businesses were involved in validating the relevant risk scenarios through individual interviews and working groups. It is therefore not required that all functions within the organization be consulted on risk scenarios.
The Director of AFA also criticized the insufficient granularity of the risk mapping. The Sanction Commission notes that the AFA recommendation does not impose any predefined level of granularity, and that an organisation may not deal specifically with a country or site, as long as it can justify this choice on the basis of an analysis of its own activities.
The Sanction Commission also notes that Imerys has complied with the AFA's recommendation on risk prioritization, by ranking risks by order of priority
The AFA also criticised Imerys for failing to draw up an action plan. The Sanction Commission recalls that the establishment of such an action plan is not a legal requirement and that Imerys cannot therefore be found to have failed to comply with this requirement.
Finally, Imerys has adopted a procedure for updating its risk mapping over a four-year period. The AFA criticized Imerys for not having provided for an annual update. The Sanction Commission rejects this complaint, holding that the AFA did not demonstrate why a four-year cycle would be irrelevant.
- Concerning the code of conduct:
The Director of the AFA criticised Imerys for not having a code of conduct that complied with the provisions of Article 17 of the Sapin II law.
The Sanction Commission notes that the code of conduct may consist of several documents, as long as they form a coherent whole and are worded in a way that is readable by all staff. These documents must state that they constitute the 'code of conduct' required by the Sapin II law and must be annexed to the rules of procedure.
Imerys had a "code of professional and ethical conduct" that contained paragraphs dedicated to the fight against corruption, but the Sanction Commission considers that this code did not meet the requirements of the Sapin II Law, as it did not contain all the topics required by the law. It also notes that the hyperlink to a complete anti-corruption programme does not meet the requirements of the law, since this programme had not been incorporated into the internal rules of the entities concerned.
- Concerning the accounting control procedures:
The Sanction Commission notes that Imerys has made efforts to put in place such procedures but that, at the date the Commission ruled, these procedures had not been fully reviewed.
In particular, the Sanction Commission accuses Imerys of failing to comply with the obligations relating to the implementation of specific accounting control points as required by Article 17, 5° of the Law of December 9, 2016. However, given the efforts already made by Imerys in terms of accounting control procedures, the Sanction Commission finds that this failure does not justify a financial penalty.
On the basis of the breaches of obligations with respect to the Code of Conduct and accounting control procedures, the Sanction Commission issued two injunctions against Imerys:
- Concerning the code of conduct: the Sanction Commission enjoins Imerys, by September 1, 2020, to (i) mention in its code of ethics the obligation to draw up a code of conduct resulting from Article 17 of the Sapin II law, to insert a separate chapter structured under several headings corresponding to the different types of behavior to be proscribed as being likely to characterize acts of corruption or influence peddling, to make these elements of its internal program easily accessible to all its employees and (ii) to demonstrate that the code of conduct has been appended to the internal regulations of its French entities.
- Concerning accounting control procedures: the Sanction Commission enjoins Imerys to provide the Sanction Commission with any evidence that it has fully completed the compliance of its accounting control procedures by March 31, 2021.
