Interview of Mr Drago KOS, Chairman of the OECD Anti-Bribery Group by Mrs GASTINE MENOU

Interview de Drago KOS, Chairman of the OECD Anti-Bribery Group
réalisée par Virginie GASTINE MENOU, Founder, Compliance Expert - Risques et Vous

VGM : Can you briefly introduce yourself and what was your background before being appointed Chairman of the OECD Anti-Bribery Group?

DK : In my country, Slovenia, I started my career as investigator in the Criminal Police. In 1999, when I left the Police, I was Deputy Director and Head of Operations of the CID. In 2004, I took over the position of the first Chairman of the newly established Commission for the Prevention of Corruption. Internationally, I served as a Chairman of GRECO between 2003 and 2011 and participated in different roles in projects in many countries (Afghanistan, the whole Balkans, Moldova, Ukraine,...).

OECD function

VGM : Concretely, what is the role of the OECD Working Group on Bribery (WGB) in the international sphere?

DK : We say that our final goal is to level the playing field in international business for all companies of the world. We try to accomplish that by rigorous monitoring of the enforcement of the OECD Convention against Bribery of Foreign Public Officials in International Business Transactions in our 44 Member States.

VGM : What are the criteria for membership of the OECD WGB ?

DK : There are basically two criteria : a candidate country has to be economically important player and its accession to the WGB has to be of a mutual benefit for both parties, the country and the WGB. The economic importance of a country is assessed through objective economic criteria and the “mutual benefit” criteria through a basic assessment of the candidate’s existing anti-corruption frameworks.

VGM : The OECD WGB provides efficient studies and monitoring of governments’ anti-bribery activities. How do you explain that the concrete actions by the countries are not obvious, visible or concrete enough?

DK : I am moderately satisfied with the level of our countries’ implementation of the WGB recommendations. There are countries, which engage a lot to implement the majority – if not all – of our recommendations but there are also countries, where it soon becomes clear that they will do everything possible to avoid implementation of some of our recommendations. In those cases we apply a strict follow-up procedure, which is a feature, which made the WGB really known in the anti-corruption world – to such an extent that Transparency International calls us « the gold standard of monitoring ».

Phase 4 evaluation report – France

VGM : How welcomed was the evaluation report of France published in December 2021?

DK : In the time of pandemic it is very challenging to produce reports, especially in cases of countries, as important as France, where many things have been done from the last report and many new developments were registered literarily until the last day before the adoption of the Report. As for any other Report, its adoption would not be possible without a huge engagement of the OECD Anti-Corruption Division, which serves as our Secretariat and two lead-examining countries, which in the case of France were Canada and Switzerland.

VGM : France's assessment report was the subject of a call for contributions. What does the share of contributors represent in this report? What are they ?

DK : Our reports are always based on countries’ responses to a tailor-made questionnaire for each of our evaluation rounds. Responses of countries are then being analysed by our Secretariat and lead examining countries and compared to their own findings during the on-site visits, which – unfortunately – in the time of pandemic are realised on-line. What follows, is the process of a precise fine-tuning of a text, which ends with the whole WGB being satisfied with it. At time of a final adoption of the Report we apply so-called « all minus one » formula, which means that we can adopt a report even if the country under evaluation is not happy with it (but all other countries are).

VGM : The evaluation report congratulates France on certain developments, including the significant increase in the amount of criminal sanctions against natural or legal persons. However, for the private sector, any sanction has been issued since the Sapin 2 law by the AFA National Sanctions Commission. What do you think ?

DK : Comparing what was in place before the adoption of the mentioned Law with what emerged on its basis led us to congratulating France for certain developments, including in the area of sanctions foreseen. Of course, we will remain vigilant while following the application of sanctions in practice and we will insist that the new sanctions are not only provided but also applied in practice.

VGM : The evaluation report lists 22 comprehensive recommendations and plans to hear from France in December 2022 on its concrete commitments? Does the OECD have the means to enforce a breach ?

DK : As stated above, our follow-up procedures are considered to be our strongest feature: once we issue a recommendation, we insist to see it implemented. We have a whole tool-box of measures at our disposal on how to ensure such implementation but I really hope that in the case of France we will not have to use anything from that box.

The Working Group made a range of recommandations to France :

VGM : Regarding the legislative framework to be strengthened, what is your opinion on the evaluation of the Sapin 2 law and the 50 proposals made by Mr. GAUVAIN and Mr. MARLEIX ?

DK : The WGB is concerned about the uncertainties surrounding the AFA’s future, particularly in the context of a potential merger with the High Authority for Transparency in Public Life (HATVP). Such a merger raises concerns that the AFA’s role in monitoring companies’ adoption of compliance measures may be diluted or even disappear. The AFA’s creation and its assigned mandate are the cornerstone for encouraging French companies to adopt internal compliance measures. This has allowed France to regain credibility and visibility in its efforts to combat international bribery. The AFA’s work in terms of preventing and detecting foreign bribery should not be undermined. Therefore, the WGB expects from France to preserve the role, the mandates and the funding currently allocated to the AFA. To make a long story short : if there will be changes in the AFA’s position, it should only change in direction of making the AFA a completely independent agency.

VGM : Regarding the role of the National Financial Prosecutor's Office, what is your opinion on French and international cooperation between financial intelligence centers, institutions, etc. ?

DK : In the Report we expressed our concerns that the PNF and its operations have been threatened with the current reforms, either adopted or proposed. Therefore, we have strongly underlined that the PNF’s role in investigating, prosecuting and resolving foreign bribery cases must imperatively be preserved. Following the last legislative changes we also required from France to take the necessary new legislative measures to extend the duration of preliminary investigations in foreign bribery cases to allow for the timely and effective enforcement of the foreign bribery offence. We issued those recommendations because the PNF represents one of the most important French institutions in the fight against international corruption.

VGM : Regarding the sufficient resources to be made available in the penal chain, what recommendations would you give to France in the context of the crisis of the judiciary in disarray which alerted the Minister of Justice during a general petition in November 2021?

DK : The WGB has found out that French investigators, prosecutors, investigative judges and trial judges still do not have the necessary resources to deal with cases within a reasonable timeframe and with the appropriate degree of specialisation. Therefore, we have recommended to France to ensure that sufficient resources are allocated to specialised investigative units, to the PNF and to investigative and trial judges, whereby the term of « resources » does not only refer to financial means but also to specialised personnel and experts, their knowledge, experience and training. As in case of all other countries, we will carefully monitor implementation of those recommendations because they are the most simple benchmark to assess the real wilingness of countries to step-up their anti-corruption efforts.

VGM : Regarding the responsibility of legal persons in the fight against corruption and the clarification of their commitments, what additional tools would be useful and necessary in addition to the Sapin 2 law and the French Anticorruption Agency ?

DK : There is always a room for improvement but currently – having in mind some disturbing developments mentioned above – we would be happy if France would not regress in its legal, institutional and practical frameworks used against international bribery. And two of the most important elements of those frameworks are Sapin 2 Law and AFA, which the WGB will “defend” with all we have at our disposal.

International and the fight against corruption

VGM : The objective of the Sapin 2 law was to bring French legislation up to the best European and international standards in the fight against corruption, and thus contribute to a positive image of France internationally? Do you think this objective has been achieved in comparison with the USA which is very active in repression?

DK : As stated above already, the adoption of Sapin 2 Law added a lot of a positive notion to the image of France as country, willing and able to fight foreign bribery with all available means. And we should not stop at the image only: objectively, France is much more equipped to fight corruption after the adoption of that Law. I only hope that the latest legislative developments and ideas will not lead to regression in that field, which would, of course, cause a very strong and immediate reaction of the WGB.

VGM : What do you think of European cooperation in the fight against corruption ?

DK : It is far from the level, which would satisfy me. There are countries, which work together in a very effective and smooth manner but also countries, where it is absolutely clear that fighting corruption is not their genuine desire – on the contrary, they engage heavily in protecting their politicians and acquired proceeds of corruption. Such developments are particularly visible in countries with strong authoritarian leaders, where – as a general rule – also the extent of corruption is increasing significantly.

VGM : Like the non-trial resolution mechanisms (CJIP) to which legal persons are subject, what do you think of a potential legal convention for natural persons? DK : In November 2021, the OECD Council adopted a revised version of 2009 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions (2021 OECD Anti-Bribery Recommendation - OECD). which – among many other issues - also deals with non-trial resolutions for both, legal and natural person. Therefore, international legal standards for CJIPs for natural persons do exist already but are brand new, of course.

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