Airbus Deferred Prosecution Agreement
As part of the deferred prosecution agreement with the Department, Airbus has agreed to continue to cooperate with the Department in all ongoing conduct-related investigations and prosecutions, including individuals, and to improve its compliance program. The PNF has agreed to suspend proceedings against Airbus for three years.9 Airbus must subject its compliance program to a targeted review by French anti-corruption agencies and pay a fine of $2.29 billion.10 However, the SFO updated its website on April 22 to indicate that its file would remain open until the end of the ODA – a settlement, allowing companies to avoid prosecution under a court-approved agreement, which often involves a fine and compliance check – in January 2023. Airbus has reached an agreement with the department on the postponement of prosecutions in connection with information on a criminal case filed in January. 28, 2020 in the District of Columbia, where the company is charged with conspiracy to violate the anti-bribery provision of the Foreign Corrupt Practices Act (FCPA) and conspiracy to violate the AECA and its implementing regulations, the ITAR. The FCPA indictment stems from Airbus` plan to offer and pay bribes to foreign officials, including Chinese officials, to obtain and retain business, including contracts for the sale of aircraft. AECA fees result from Airbus deliberately failing to disclose political contributions, commissions, or fees to the U.S. government in connection with the sale or export of defense items and defense services to the armed forces of a foreign country or international organization. The case was assigned to U.S. District Judge Thomas F. Hogan of the District of Columbia.
Airbus and the SFO, as well as France and the United States, prosecutors agreed to a groundbreaking deferred prosecution agreement (DPA) with the company in January 2020 and declined to comment. The people involved in the misconduct have been anonymized in the Data Protection Authority, judgment and statement of facts so as not to prejudice a possible subsequent prosecution of these individuals – but in a separate interview with the BBC, FSO Director Lisa Osofsky has already pointed out that any prosecution of individuals could take place in France and not in the UK. given the focus on French blocking behavior and legislation, which would likely restrict the disclosure of certain evidence to foreign law enforcement agencies. In particular, in the recent past, the FSO has failed to prosecute individuals for their role in the misconduct of an organization (e.g., the FSO`s investigation into Guralp led to the prosecution of three employees, all of whom were acquitted; the investigation into individual involvement in Rolls Royce`s misconduct has been closed and, more recently, the SFO has failed in the high-profile prosecution of Barclays executives). It remains to be seen whether current or former Airbus employees in the UK will be charged with the offences that have been the subject of the DPA, but failure to properly investigate individuals will undoubtedly strengthen the FSO`s scrutiny. 12 In Singapore, the enactment of the Criminal Justice Reform Act 2018 established the framework for the conclusion of DpAs by the Prosecution Service. [6] Singapore`s approach is based on the UK ODA system. But his approach is most notable because it marks the shift of the country`s center of gravity from personal responsibility and prosecution of individuals to an investigation into corporate culpability. However, the ODA represents only the conclusion of the first phase of the crime investigation. Much of the misconduct involved the systematic payment of bribes, primarily through the use of BPS. Such misconduct can include several levels of involvement: those who pay the bribes, those who are involved in a cover-up, professionals who have not responded to red flags, senior executives who have actively promoted the practice or deliberately turned a blind eye, and directors and board members who have allowed the culture to authorize misconduct.
It is clear that there may be several culprits operating at different levels of Airbus who can be prosecuted. 12 The authorities are still investigating the involvement of individuals in Airbus` allegations of misconduct and the issue of individual prosecution remains. “Airbus fraud investigation `remains active` while details of sanction are known,” David Kaminski-Morrow, January 31, 2020 www.flightglobal.com/airframers/airbus-fraud-investigation-remains-active-as-penalty-details-emerge/136480.article Confessions and court documents show that Airbus hired some business partners in part to support the corruption system in order to conceal and facilitate the corruption system. Between about 2013 and 2015, Airbus hired a trading partner in China and knowingly and deliberately conspired to make payments to the trading partner in order to use them as bribes to government officials in China in connection with the approval of certain agreements in China related to the purchase and sale of Airbus aircraft to state-owned and state-controlled airlines in China. In order to conceal the payments and commitment of the trading partner in China, Airbus did not pay the trading partner directly, but made payments to a bank account in Hong Kong on behalf of a company controlled by another trading partner. The UK element of the January 2020 settlement required Airbus to enter into a Deferred Prosecution Agreement (DPA) with the Serious Fraud Office (SFO). [1] This DPA is larger than the six previous UK data protection authorities combined, with Airbus paying a total of €991 million, of which around 60% is linked to the recovery of profits related to the non-prevention of corruption under the Corruption Act 2010. Airbus has to pay nearly 2.08 billion euros in France and more than 525 million US dollars in the United States. [2] But the attractiveness of data protection authorities goes beyond being seen as a “quick fix” to a problem. Airbus is just one of many international companies in its prospects and operations. If such an undertaking is suspected of misconduct, any resulting investigation must cross borders and involve a high degree of multi-jurisdictional cooperation and coordination. Such an approach is necessary both in the investigation itself and in the conclusion of a result.
DPAs are a way for countries to achieve a mutually agreed outcome and avoid the forum shopping risks already mentioned. Although no two countries have identical laws or legal systems, any multinational investigation could, at least in theory, lead to disagreements between investigative authorities over where a trial should take place. The use of DPAs eliminates this potential problem, as each country can impose its own sanctions without the need for a “tug-of-war” over where justice should be done. While the numbers are huge, the fact that the agreements were all approved by the courts of each of the three countries on the same day shows the level of international cooperation involved in this investigation. When Japan`s criminal trial negotiation system was introduced in 2018, it allowed for gentle treatment of people accused of certain crimes when they provided information that helped investigate or prosecute others. [10] Many initially assumed that the system would be used exclusively to enter into agreements with members of criminal organizations. But prosecutors will now use it in the same way that the UK and US use their DPA schemes for corporate crime. The company`s payment in the U.S. will be $527 million for FCPA and ITAR violations and an additional $50 million (approximately). $55 million) as part of a civil forfeiture agreement for ITAR-related conduct, and the department will credit a portion of the amount the Company pays to the National Financial Prosecutor`s Office (PNF) in France under the Company`s agreement with PNF.
In addition, the company agreed to pay a $10 million fine to the U.S. State Department`s Defense Trade Control Directorate (DDTC), whose department credits $5 million. In a related proceeding, the company reached an agreement with the PNF in France over bribes paid to government officials and non-governmental airline executives in China and several other countries, and the company agreed to pay more than €2 billion (more than about $2.29 billion) under the PNF agreement. As part of this coordinated global resolution, the company also entered into a deferred prosecution agreement with the UK`s Serious Fraud Office (SFO) for bribes in Malaysia, Sri Lanka, Taiwan, Indonesia and Ghana, and the company agreed to pay approximately €990 million (approximately $1.09 billion) under the SFO agreement. PNF and SFO had investigated the company as part of a joint investigation team. .
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