Section 3: Powers of the public prosecutor

I. - As long as the public prosecution has not been initiated, the public prosecutor may propose to a legal person accused of one or more of the offences provided for in Articles 433-1,433-2,435-3,435-4,435-9,435-10,445-1,445-1-1,445-2and 445-2-1, in the penultimate paragraph of Article 434-9 and the second paragraph of Article 434-9-1 of the Criminal Code and their laundering, for the offences set out in Articles 1741 and 1743 of the General Tax Code and their laundering, as well as for related offences, to enter into a judicial public interest agreement imposing one or more of the following obligations:

1° Pay a public interest fine to the Treasury. The amount of this fine is set in proportion to the benefits derived from the breaches established, up to a limit of 30% of the average annual turnover calculated on the last three annual turnover figures known on the date on which the breaches were established. Its payment may be staggered, according to a schedule set by the Public Prosecutor, over a period which may not exceed one year and which is specified by the agreement;

2° Submit, for a maximum period of three years and under the supervision of the French Anti-Corruption Agency, to a compliance programme designed to ensure that the measures and procedures listed in II of Article 131-39-2 du code pénal.

The costs incurred by the use by the French Anti-Corruption Agency of experts or qualified persons or authorities to assist it in carrying out legal, financial, tax and accounting analyses required for its control mission shall be borne by the accused legal entity, up to a ceiling set by the agreement.

When the victim is identified, and unless the accused legal entity provides evidence of compensation for its loss, the agreement also provides for the amount and terms of compensation for the damage caused by the offence within a period that may not exceed one year.

The victim is informed of the public prosecutor's decision to propose the conclusion of a judicial public interest agreement to the accused legal entity. He or she shall send the public prosecutor any evidence that may help to establish the reality and extent of his or her loss.

The legal representatives of the accused legal entity remain liable as natural persons. They are informed, as soon as the Public Prosecutor's proposal is made, that they may be assisted by a lawyer before agreeing to the proposed agreement.

II. - When the accused legal entity gives its agreement to the proposed agreement, the Public Prosecutor refers the matter by petition to the President of the Judicial Court for validation. The proposed agreement shall be attached to the petition. The request contains a precise statement of the facts and the legal classification that may be applied to them. The public prosecutor shall inform the accused legal entity and, where applicable, the victim of the referral.

The president of the court will hear the accused legal entity and the victim in open court, assisted, if necessary, by their lawyer. At the end of this hearing, the president of the court will decide whether or not to validate the proposed agreement, by verifying that recourse to this procedure was justified, that it was properly conducted, that the amount of the fine complies with the limits provided for in 1° of I of this article and that the measures provided for are proportionate to the benefits derived from the breaches. The decision of the President of the Court, which is notified to the accused legal entity and, where applicable, to the victim, is not subject to appeal.

If the president of the court issues a validation order, the accused legal entity has a period of ten days from the date of validation to exercise its right of withdrawal. The public prosecutor is notified of the withdrawal by registered letter with acknowledgement of receipt. If the legal entity in question does not exercise this right of withdrawal, the obligations contained in the agreement shall be performed. Otherwise, the proposal lapses.

The validation order does not entail a finding of guilt and has neither the nature nor the effects of a judgment of conviction.

The judicial public interest agreement is not entered in bulletin no. 1 of the criminal record. It is the subject of a press release by the public prosecutor.

The validation order, the amount of the public interest fine and the agreement are published on the websites of the Ministries of Justice and the Budget.

The victim may, in the light of the validation order, seek recovery of the damages that the legal entity has undertaken to pay him or her following the injunction to pay procedure, in accordance with the rules laid down in the Code of Civil Procedure.

III. - If the president of the court does not validate the proposed agreement, if the accused legal entity decides to exercise its right of retraction or if, within the period provided for in the agreement, the accused legal entity does not provide proof of full performance of the obligations provided for, the public prosecutor shall set in motion the public prosecution, unless there are new elements. If the agreement was entered into in the context of a judicial investigation, the last paragraph of article 180-2 shall apply. In the event of prosecution and conviction, account shall be taken, where appropriate, of the partial performance of the obligations set out in the agreement.

If the president of the court does not validate the proposed agreement or if the legal entity exercises its right of retraction, the public prosecutor may not refer to the statements made or the documents handed over by the legal entity in the course of the proceedings provided for in this article before the investigating court or the trial court.

On pain of nullity, the Public Prosecutor will notify the accused legal entity of the suspension of performance of the agreement where that entity does not provide proof of full performance of the obligations laid down. This decision takes immediate effect. Where applicable, it automatically entails the repayment of the public interest fine paid to the Treasury as provided for in 1° of I. However, it does not entail the reimbursement of any costs incurred by the legal entity and occasioned by the Agence française anticorruption's recourse to experts or qualified persons or authorities to assist it in carrying out legal, financial, tax and accounting analyses necessary for its control mission.

IV. - The statute of limitations for public action is suspended during the performance of the agreement.

The performance of the obligations under the agreement extinguishes the public prosecution. It does not, however, preclude the right of persons who have suffered loss as a result of the breaches found, other than the State, to pursue compensation for their loss before the civil courts.

The president of the judicial court may designate, for the purposes of validating the judicial public interest agreement, any judge of the court.

V. - The detailed rules for the application of this article shall be laid down by decree in the Conseil d'Etat.