France: The ne bis in idem Principle and Settlements With US Authorities

Skadden's 2015 Insights - Global Litigation

Successive investigations in France following U.S. prosecutions and settlements have led to court challenges on the grounds of double jeopardy, a trend that will only increase as more countries scrutinize the same conduct in multijurisdictional investigations. Under Article 113-9 of the French Criminal Code (and Article 692 of the Code of Criminal Procedure), a French citizen cannot be prosecuted for crimes and misdemeanors (délits) committed outside France, nor can a foreigner if the offense involved a French victim, if the perpetrator has been tried abroad for the same facts and, if convicted, a sentence was served or is time-barred.

However, for offenses committed at least in part on French republic territory, French courts consistently have held that decisions rendered by foreign tribunals in connection with the same facts do not have res judicata effect in France. In 2013, the French Supreme Court (Cour de cassation) slightly tempered that principle by holding that any period of imprisonment spent abroad should be taken into consideration by the French criminal court at the sentencing stage.

In recent years, the broad interpretation of the scope of certain laws and regulations, especially in corruption, economic sanctions and money laundering cases, has increased the number of cases in which an individual or legal entity is prosecuted and possibly sanctioned twice for the same set of facts — especially in situations in which U.S. authorities have secured an NPA, DPA or guilty plea. This has led the Paris criminal court of first instance (Tribunal correctionnel) to revisit the above jurisprudence and decide that the ne bis in idem principle should in fact be enforced by French courts. (See "France's Double-Trial System for Market Abuses May Be Headed for Reform.")

One significant matter involves prosecutions in France following the U.N. Oil-for-Food investigations. In this matter (TGI Paris, 11ème ch. Correctionnelle, July 8, 2013), the oil company Vitol, among many others, was prosecuted in France for bribing foreign public officials in connection with the allocation of contracts in Iraq. The Paris criminal court held that the plea deal between Vitol and U.S. authorities prevented prosecution in France. The court ruled that the French Code of Criminal Procedure section governing res judicata and the International Covenant on Civil and Political Rights of 1966 section guaranteeing ne bis in idem protections were not limited to "domestic" sentencing decisions.

A second important matter relates to the investigations and prosecutions of Jeffrey Tesler for corruption in connection with a liquidated natural gas (LNG) facility construction project in Nigeria. Tesler, a British lawyer, concluded an FCPA plea agreement with the U.S. in 2011; Tesler admitted guilt, waived his rights to challenge the facts and served 21 months in prison. French authorities subsequently sought to bring charges against him, and the French court held that such a follow-on prosecution was precluded (TGI Paris, 11ème ch. Correctionnelle, June 24, 2014). In light of Tesler's covenants under the plea agreement, the court held that he was no longer in a position to receive a fair trial in France pursuant to Article 6, Section 1, of the European Convention on Human Rights (ECHR). The court also ruled that the ne bis in idem principle should be applied under these circumstances.

Finally, the exact same issue also will arise in 2015 in the upcoming Total S.A. trial, in which the French oil company will be prosecuted for alleged bribery in Iran in the context of the attribution of oil and gas fields. In May 2013, Total entered into a DPA with the U.S. for the same facts and agreed to pay a $398 million settlement.

Whether these decisions will be confirmed on appeal will constitute one of the major criminal law developments in the coming months in France.

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