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P.M (Ethic Intelligence) : “One of the Most Important Elements of the Anti-corruption French law is the notion of risk mapping"
Philippe Montingy has more than fifteen years of experience in the field of anti-corruption. Now president of Ethic Intelligence, an anti-corruption certification agency he founded in 2006, he is convinced that good compliance, properly integrated into strategy, encourages the business development.
Leaders League. What prompted you to create your own anti-corruption certification agency?
Philippe Montigny. As a member of the OECD Secretary General’s cabinet in the 1990s, I had the opportunity to attend the ministerial level negotiations which led to the Anti-Bribery Convention signed in December 1997. Following the OECD, I joined a consultancy in London which specialized in the development of international markets for companies operating in Africa, the Middle East and in central and eastern Europe. That is when I discovered the pervasiveness of corruption which appeared in each dossier I handled. This discovery motivated me to devote my professional life to corruption prevention. Consequently, I created Ethic Intelligence in 2001. Initially, I worked on corruption prevention, however, I very quickly realized that the implementation of a corruption prevention system represented a significant investment for companies. When a company does business legally, it minimizes the risk of being confronted by a serious corruption problem. A company that relies on its development exclusively through innovation and know-how, without resorting to fraudulent practices, is obviously a very good company. It was within this context that I developed the anti-corruption certifications terms of reference in 2004. At the time it was difficult to convince companies to communicate on the fact that they did not pay bribes. Ultimately, I managed to convince them, however, that the certification of their corruption prevention procedures would bring added value to their commitment to ethical business practices and would address the increasing demands of stakeholders on the issue of corruption prevention. The publication of an international standard on anti-bribery management systems, the ISO 37001, in 2016, demonstrates that my original idea of ten years ago was correct.
How was the idea of certification first received?
I launched the certification in 2006. The launch was difficult because companies at the time had nothing to certify. Certain companies had Ethics Codes but they were not supported by either procedures or prevention programs. However, little by little, in companies which had been confronted with problems of corruption or which worked in sectors where the issue of corruption was prominent, the idea gained respect amongst some of the biggest groups including Alstom, Siemens, Schneider Electric, Orange, EADS… all of which asked to have either all or part of their corruption prevention systems certified.
How do you bring awareness on the fight against corruption to companies?
We organize training on international legislation and best practices in corruption prevention according to different themes and types of business. There are general sessions on corruption prevention several times a year and these are interspersed with others on specialized topics including whistleblowing, gifts and invitations policy, crisis management, etc. I spend more of my time presenting the subject to executive committees of multinationals both French and international. In two hours, I must convey to executives with very different functions the importance of understanding the risk of corruption as well as their potential responsibilities and liabilities.
“In France, it is more and more common to speak of compliance leaving conformity to the side”
In your view, what are the most important elements of the French Sapin II law that entered into force in June 2017?
The Sapin II law establishes a framework which details what companies must do to prevent corruption. The French approach is very different from other countries because it contains obligations. If companies do not implement the obligations, they could be fined. In the eight principles of Article 17 it is clear that they originated with the French banking sector and that four of them have come from the area of controls. In banking, the obligation is to control financial flows. In corruption prevention, companies must focus on prevention which requires procedures much earlier on in the process than financial flows. Therefore, it is necessary to train employees so that they understand the risk and are equipped with the appropriate tools of analysis and due diligence in order to take appropriate decisions. For me, Sapin II law puts too much focus on controls to the detriment of prevention. One of the most important elements of the law, however, is the notion of risk mapping. I believe that French companies should make the risk mapping exercise the fundamental element of their corruption prevention program. From there, the company can evaluate the type and level of corruption prevention program it needs to implement.
What do think about the idea of negotiated settlements?
It is one of the major innovations of the Sapin II law. Traditionally, in France, when a company discovered a case of corruption, it was difficult for the executive to take the decision to report to the Ministry of Justice because of the vagaries of the procedures and the unpredictability of sanctions. It was more in his or her own interest to bury the affair which was, needless to say, counter-productive. Negotiated settlements, modeled on the Anglo-Saxon deferred prosecution agreements are a positive development. The Sapin II law stipulates that a company which reveals an act of corruption to the authorities can be eligible for a negotiated settlement. The company would pay a fine and be obliged to implement or reinforce its corruption prevention procedures under the supervision of the French Anti-Corruption Agency (AFA).
“It is very important that the French anti-corruption agency be adequately funded and staffed with experienced people”
How do you feel about the creation of a French Anti-Corruption Agency (AFA)?
An anti-corruption agency is a very good idea. It is very important, however, that the agency be adequately funded and staffed with experienced people as has been the case in the United States’ Department of Justice and the nomination of a chief compliance officer. In France, AFA’s mandate focuses largely on controls and investigation, but I know that the Managing Director, Charles Duchaine, wants to increase its role in advice and prevention. It is true that we live in a country where the philosophy of our administration is oriented more toward controls of the private sector than is found in Anglo-Saxon countries where more importance is given to the roles of advice and support.
What are the principle differences between conformity and compliance?
In English, there are two verbs: to “conform” and to “comply”. In French, we have only the term se conformer, which means to follow the rules. In the Anglo-Saxon world, compliance has a less formal implication because it includes a duty of care. That is why it is more and more common in France to speak of compliance leaving conformity to the side. Conformity is, however, a useful term in the banking sector where there are particularly strict rules and many controls. In companies, the focus is more on behavior and decision-making. In this context it is more appropriate to use the term “compliance.”
Interview by Margaux Savarit-Cornali
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