Confirming the order in the UK (32 page / 309KB PDF), High Court judge Dame Victoria Sharp said the criminality involved was “grave” and that Airbus did not have adequate procedures in place to prevent people associated with the company from carrying out the criminal conduct they were accused of. The SFO said that the level of fine set by the court in the DPA "reflected the gravity of the conduct, the full cooperation of Airbus SE in the investigation, and the programme of corporate reform and compliance put in place by new leadership at the top of the company".
Compliance expert Fiona Cameron of Pinsent Masons said the scale of the settlement underlined the extent to which regulators in the UK, France and US as well as other jurisdictions were prepared to cooperate in the pursuit of wrongdoing.
“Organisations which uncover misconduct must take note and consider carefully which regulators in which jurisdictions should be informed. Differing jurisdictional rules, for example on matters such as privilege, will need specialist advice from the start,” Cameron said.
Cameron said Dame Victoria had emphasised the importance of incentivising the exposure and self-reporting of corporate wrongdoing, but that the Airbus case also showed that a failure to self-report is not necessarily fatal to a DPA "if subsequent self-reporting or cooperation overall, is of a high quality and brings significant wrongdoing to light that would not otherwise have come to the attention of the authorities".
In this case, after what Dame Victoria described as a “slow start”, Airbus was said to have cooperated to the fullest extent, notably accepting that the Bribery Act 2010 provided the SFO with extended extraterritorial powers and meeting many of the standards set out in the SFO's corporate cooperation guidance published last August. This included adopting a "cooperative position in relation to privilege" as well as listing documents withheld on the basis of privilege with reasons for so doing "which were verified by the SFO". The company also provided external accountants and internal personnel to present and explain financial processes and money flows.
“Following the SFO's guidance on evaluating compliance programmes, published earlier this year, the court’s emphasis on Airbus' compliance programme and its compliance culture before, during and after the period of wrongdoing is unsurprising," Cameron said. "Airbus has been able to point to its early recognition of failures and to the strengthening of its programme and culture throughout that period and beyond.”
The identity of the individuals allegedly involved in the Airbus case has not been revealed, although the SFO said its investigation remained active and the position in relation to individuals was being considered.
In France, anti-corruption authority the AFA will conduct targeted audits over the next three years to ensure the full deployment of the compliance programme committed to by Airbus in its agreement with the PNF across the entities and subsidiaries of the group.