Compliance is a concept designed to ensure that operators comply with all applicable laws and regulations. Initially introduced in the 1970s in the United States to fight corruption in targeted sectors such as banking and defense, Compliance has since spread to all business sectors. Today, Compliance is a requirement for all operators, wherever they are based, in order to avoid sanctions that can prove costly from both a financial and reputational point of view.

The situation in Morocco

Morocco, now a major player on the global business scene, has not escaped this trend, and Compliance has become a major concern. In 2011, principles such as anti-corruption, transparency and good governance were enshrined in the Constitution, and since then, several laws have been passed to reinforce these principles and encourage companies to self-regulate. The most recent initiatives to this end include:

• in the field of public procurement, significant measures have been adopted to prevent corruption. For example, members of tender committees are now required to declare any conflicts of interest, and companies taking part in tenders must undertake not to resort to fraud or corruption. Tender procedures have also been dematerialized to enhance transparency. Severe sanctions are provided for in the event of non-compliance with these rules, including potential exclusion (temporarily or permanently from tenders, depending on the seriousness of the violation).

• in the stock market, in addition to “classic” stock market offenses (such as insider trading, etc.), companies whose securities are listed on the stock exchange are now required to comply with a code of ethics detailing various Compliance rules, and to appoint a Compliance officer.

The role of whistle-blowers and the limits of the Moroccan legal regime on whistle-blowing

Whistle-blowers play a crucial role in Compliance, helping to detect risks of non-compliance and denounce violations. However, in Morocco, they do not enjoy sufficient legal protection against reprisals, which limits their effectiveness. At present, the protection of whistleblowers is based on legal provisions for the protection of victims and witnesses, but these do not guarantee complete protection against reprisals.

Impact of extraterritorial French laws on Compliance

Certain French laws, notably those on anti-corruption and due diligence, have an extra-territorial scope and are intended to apply to Moroccan companies that are affiliated to French groups or have activities in France. In addition, French criminal law may apply to acts committed abroad (including Morocco) if the victim or perpetrator of the offense is French, or if part of the offense took place in France. In addition, French companies subject to the Sapin II law are required to set up an anti-corruption program and a due diligence program covering their Moroccan subsidiaries, with which the latter must also comply.

Moroccan subsidiaries of French groups are required to implement and contribute to their parent company's Compliance programs. This includes assessing their business partners, including compliance clauses in their contracts, and implementing risk prevention measures such as employee training.

Moroccan companies must therefore comply not only with local regulations but also with certain French laws, in order to avoid sanctions being imposed on them or on the French company with which they have a relationship. This dual requirement makes Compliance indispensable, albeit complex, as well as a rigorous mastery of the various applicable regulations.