La transaction pénale pour les entreprises. Genèse, circulation et usage d’un dispositif judiciaire

By the end of 2016, the loi relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique, known as the « Sapin 2 law », introduced in French law a new criminal settlement procedure for business organizations and other legal persons: the convention judiciaire d’intérêt public (CJIP). Inspired by the deferred prosecution agreements practiced since the 1990s in the United States and since 2014 in the United Kingdom, the CJIP offers an alternative to prosecution against corporate entities suspected of offenses related in particular to corruption and tax fraud, by enabling the negotiated resolution of such cases: prosecutors and defendants can thus agree to suspend criminal prosecution in exchange for acknowledging incriminating facts, paying a fine and, in certain cases, implementing organizational reforms to prevent the risk of recidivism – all without a formal declaration of guilt. This new possibility of a negotiated outcome to criminal proceedings against companies represents a small « cultural revolution » in French justice, which was not welcomed without debate. Resulting from the collaboration of a sociologist and a jurist who share an interest in the uses and circumventions of the law by economic and financial actors, this report traces the genesis, circulation and uses of deferred prosecution agreements, from its American origins to its recent implementation in the French legal system. It presents the results of a research project based on qualitative interviews with some fifty legal professionals in the United States and France, on ethnographic observations of public hearings to validate CJIPs in France, and on a documentary analysis designed to reconstruct the debates mediatic, parliamentary, judicial and doctrinal – that have shaped the evolution of the corporate criminal settlement procedures over the last few decades. The report shows how, over the last thirty years and in several countries around the world, a new way of settling disputes with major corporations has gradually taken hold. The rapid rise of the negotiated settlement as the preferred mode of public action in the fight against economic and financial crime is inextricably linked to a new investment of corporate lawyers into the field of criminal law. Born of the unprecedented negotiating space between prosecutors and defense attorneys which characterized New York judicial microcosm of the late twentieth century, deferred prosecution agreements were later imported to France and the UK in the wake of corruption scandals involving some leading national companies targeted by the extraterritorial action of American prosecutors. Outside the U.S., adopting deferred prosecution agreements was conceived as a means of regaining control over the investigation, prosecution and punishment of national companies and protecting them from the long arm of American justice. In turn, corporate lawyers’ investment in criminal law is renewing the dynamics of the legal field, transforming not only the work of prosecutors and judges, but also the conditions under which corporate crime is made socially visible and criticized.

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