17/06/2016: The Court of Appeal of Versailles - the Group's position

We are very surprised by the demands of the prosecutor, which reflect neither the three-day hearing, nor the previous trials before the Criminal Court and the Court of Appeal.

We have always recognised that there were weaknesses and oversights in some of our control functions, which have since been resolved, but it was because of Jerome Kerviel’s intentional fraudulent actions that these controls failed.

In his observations, the prosecutor confirms Jerome Kerviel’s guilt, and the total losses incurred, and rejects the defendant’s position claiming that the bank was aware of Jerome Kerviel’s risk-taking. The prosecutor is therefore ruling out any involvement of the bank.

Societe Generale relies on the wisdom of the Court of Appeal of Versailles, and patiently awaits its decision.

15/06/2016: UPDATE ON THE KERVIEL CASE

The Jérôme Kerviel case is back in the spotlight with the decision of the Paris Labour Court on 7 June, the civil suit to be heard at the Versailles Court of Appeal from 15 to 17 June and the release of the film, L’Outsider, which is based on Kerviel’s book, on 22 June.

It is important to reiterate that in March 2014 the Court of Cassation definitively sentenced Jérôme Kerviel for the criminal offences of fraudulent entry of data into an automatic processing system, forgery and use of forged documents, and breach of trust as the result of having concealed huge positions that put the Bank and its employees at risk.

- WHAT IS AT STAKE IN THE CIVIL SUIT? HOW WILL THE CASE PROCEED?
- WHAT POSITION WILL SOCIETE GENERALE TAKE DURING THE CIVIL HEARING? WILL YOU ONCE AGAIN CLAIM THE REIMBURSEMENT OF €4.9 BILLION, A CONSIDERABLE SUM?
- HOW DO YOU INTERPRET THE DECISION MADE BY THE PARIS LABOUR COURT ON 7 JUNE?
- WILL THE DECISION OF THE PARIS LABOUR COURT ON 7 JUNE HAVE AN IMPACT?
- COULD THE TAX TREATMENT OF THE FRAUD BE RECONSIDERED DEPENDING ON THE OUTCOME OF THE CIVIL SUIT?
- WHAT OTHER LEGAL PROCEEDINGS ARE STILL UNDERWAY?
- WHAT IS THE GROUP’S POSITION ON THE FILM, L’OUTSIDER, TO BE RELEASED ON 22 JUNE?

- WHAT IS AT STAKE IN THE CIVIL SUIT? HOW WILL THE CASE PROCEED?

The new hearing before the Versailles Court of Appeal will determine the amount of damages and interest that Jérôme Kerviel must pay Societe Generale.

As a reminder, the Court of Cassation, in its ruling of 19 March 2014, definitively confirmed Jérôme Kerviel's criminal conviction. However, it overruled the civil compensation award, abandoning its hundred year-old legal convention of granting the victim of a criminal offence whose assets have been affected compensation for the losses caused by the offence, and referred the issue to the Versailles Court of Appeal to consider the sharing of compensation.

The Court of Appeal will not review the amount of the loss caused by Jérôme Kerviel, which was definitively confirmed in the Court of Cassation’s ruling. The Court of Appeal will however determine the amount of compensation payable to Societe Generale based on sharing of liabilities.

The case will be heard by Judge Patrick Wyon. It is a public hearing, and witnesses may be called. The request made by Jérôme Kerviel’s lawyer, David Koubbi, to call Societe Generale’s three lawyers as witnesses is intended to destabilise the parties. The two roles of lawyer and witness are strictly incompatible from an ethical point of view.

The Versailles Court of Appeal is likely to issue its ruling in the fourth quarter of 2016.

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- WHAT POSITION WILL SOCIETE GENERALE TAKE DURING THE CIVIL HEARING? WILL YOU ONCE AGAIN CLAIM THE REIMBURSEMENT OF €4.9 BILLION, A CONSIDERABLE SUM?

Societe Generale wants the entire financial and moral harm endured by the Bank as a result of the losses caused by Jérôme Kerviel to be recognised and compensated. The criminal actions intentionally undertaken by Jérôme Kerviel are extremely serious, and bear no comparison with the shortcomings identified in the Bank’s control procedures. Societe Generale will therefore ask the Court to uphold Jérôme Kerviel’s sentence to pay €4.9 billion in compensation for the damage and harm caused.

However, in practical terms, as the Bank has always said, it is obviously impossible for an individual to pay such a large sum. Societe Generale has always said that it would be receptive to a humane solution that is acceptable to all parties.

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- HOW DO YOU INTERPRET THE DECISION MADE BY THE PARIS LABOUR COURT ON 7 JUNE?

The Labour Court is responsible for ruling on disputes that arise between employees and employers as part of an employment contract. It is a court that consists of non-professional judges who represent employers and employees, and who are elected to perform their duties. The Court bases its decisions on the French Labour Code.

In making its ruling, the Paris Labour Court primarily invoked the statute of limitations.

Under French Labour Law, disciplinary proceedings must actually be initiated within a certain timeframe, starting from the date when the employer became aware of the misconduct.

In this case, the Labour Court took the view that Societe Generale had been aware of Jérôme Kerviel's misconduct prior to the date when his fraudulent transactions were discovered (namely 18 January 2008) due to the fact that trading limit overruns had already been observed.

However, in reality, Jérôme Kerviel's fraudulent actions were hidden by fictitious transactions and did not appear in the limit breach notification system. The Bank was therefore not aware of them. In any event, the extent of these overruns was tiny compared with the amount of the transactions that Jérôme Kerviel had fraudulently hidden, which generated an exposure of between €30 and €50 billion.

The Labour Court, based on its assessment of the Statute of Limitations, decided that Jérôme Kerviel's dismissal had been unlawful under French Labour Law. It therefore ordered the Bank to pay Jérôme Kerviel compensation on various grounds, together with the bonus for 2007 that he claimed, i.e. a total amount of around €450,000.

To justify the payment of the 2007 bonus, which is surprising to say the least, the Labour Court took the view that Jérôme Kerviel had earned the Bank over €1.5 billion. In actual fact, as Jérôme Kerviel had never disclosed his fraudulent earnings of €1.5 billion to his line management, he negotiated the bonus on the basis of earning €55 million in 2007.

For Societe Generale, the ruling issued by the Paris Labour Court is the result of an erroneous assessment of the facts.

In addition, this ruling does not comply with one of the major principles in law, namely "the authority of res judicata" between criminal and civil law, i.e. the fact that a verdict that has previously been issued on the same facts by a criminal court cannot be subsequently disputed by a civil court (such as the Labour Court). We should in fact remember that the Court of Cassation (the French Supreme Court) definitively sentenced Jérôme Kerviel in March 2014 on the grounds of the criminal offences for the fraudulent entry of data into an automatic processing system, forgery and use of forged documents, and breach of trust as the result of having concealed huge positions.

Societe Generale has announced that it will be appealing this decision. The Labour Court aspect will be reviewed again by a body of professional magistrates sitting in the Court of Appeal. The Court of Appeal’s decision is not likely to be announced before 2017.

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- WILL THE DECISION OF THE PARIS LABOUR COURT ON 7 JUNE HAVE AN IMPACT?

This decision by the Paris Labour Court, which relates only to Labour Law, has no bearing on other past or ongoing criminal and civil proceedings.
As such, it does not call into question the definitive sentence handed down to Jérôme Kerviel in March 2014 by the Court of Cassation, which had concluded that he was solely criminally liable, and had sentenced him to five years in prison, including three years before being eligible for parole.
Furthermore, this decision has no direct impact on the civil proceedings in the case, which are expected to be heard in the Versailles Court of Appeal between 15 and 17 June this year, in order to determine the amount of damages and interest payable by Jérôme Kerviel.

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- COULD THE TAX TREATMENT OF THE FRAUD BE RECONSIDERED DEPENDING ON THE OUTCOME OF THE CIVIL SUIT?

No, because the deductibility of the loss arising from the fraud was justified by Jérôme Kerviel’s criminal conviction by the Court of Cassation in 2014, which found him guilty of forgery and use of forged documents, breach of trust and fraudulent entry of data into an automatic processing system.

The tax treatment has been completely transparent and in accordance with the tax legislation applicable to every company. Any company that has suffered losses deducts them from its tax bill. Exceptions that call into question the deductibility of the losses do not apply to Societe Generale’s situation. Previous and recent judgements made by the French Council of State reinforce the validity of deducting the loss. According to the Council of State in 2011, senior executives would have had to deliberately decide not to establish controls in order for the deduction to be called into question. This is not the case. A new ruling by the Council of State in March 2016 recently reinforced this analysis: if an employee carries out acts outside of his or her mandate, even if there are shortcomings in the organisation's controls, the company cannot be made to bear the consequences.

Given these judgements, we believe that, no matter what the verdict of the Versailles court in the civil trial, it will not impact the tax treatment of the loss resulting from the fraud perpetrated by Jérôme Kerviel, who was definitively convicted for criminal activities.

At no stage did Societe Generale ask for special treatment; nor was such treatment given to our Group.

Furthermore, contrary to the requests made by Jérôme Kerviel, in law, the tax deduction has never been used in the calculation of compensation claimed: compensation is always calculated on the gross amount and does not take account of tax deductions obtained. Any compensation paid in such circumstances is not subject to tax.

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- WHAT OTHER LEGAL PROCEEDINGS ARE STILL UNDERWAY?

In order to give his highly profiled media and legal campaign weight, Jérôme Kerviel is launching a complex, muddled series of legal proceedings, making false accusations against Societe Generale without ever providing any new facts. He is nonetheless in the media spotlight, making purported revelations ahead of each new trial.

He has filed three criminal lawsuits against Societe Generale for forgery and the use of forged documents, obtaining a verdict under false pretences and subordination of witnesses. There is nothing new that did not come out in the proceedings that led to Jérôme Kerviel’s criminal conviction. In turn, Societe Generale has filed defamation complaints to challenge these untruthful and unfounded allegations. The investigation of these complaints is underway.

It was in relation to these complaints that the unjustified accusations made by the police commander Nathalie Le Roy against Societe Generale were revealed. Several press articles pointed to evidence that contradicted each and every one of her comments.

Jérôme Kerviel used the comments made by Nathalie Le Roy to justify his application for his conviction to be reviewed by the Criminal Case Review Court in May 2015. The Criminal Case Review Court’s Investigation Committee, charged with considering whether Jerome Kerviel’s application was admissible, decided in March 2016, without any new evidence, to postpone its decision pending the outcome of ongoing investigations. Prior to the hearing, a secret recording of Chantal de Leiris (former vice public prosecutor of Paris, who worked on the case in 2012) by Nathalie Le Roy, was leaked to the press. The recording referred to an alleged manipulation of justice. Chantal de Leiris has denied the accusations, but Jérôme Kerviel’s defence team continues to focus on this recording.

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WHAT IS THE GROUP’S POSITION ON THE FILM, L’OUTSIDER, TO BE RELEASED ON 22 JUNE?

Although the film is based on a true story, it is mainly derived from Jérôme Kerviel’s book, “L’engrenage : mémoires d’un trader” (Downward Spiral: Memoirs of a Trader), published in 2010. It therefore presents his version of the story. In order to have the truthful facts, we recommend you read, or reread, the court rulings, in particular the decision of the Court of Cassation in March 2014, which definitively confirmed Jérôme Kerviel’s fraudulent actions carried out without the Bank’s knowledge.

Contrary to what could be suggested by the ubiquitous presence of Societe Generale’s logos throughout the film, the Bank did not give its approval for the making of the film. Notwithstanding any potential legal action, which is currently under consideration, the Group condemns the caricatured image given to its staff, for whom the events portrayed were traumatic.

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1. SOCIETE GENERALE DISCOVERED THE FRAUD IN JANUARY 2008.

On 18 January 2008, after being alerted by its control systems, Societe Generale conducted an internal investigation and discovered that one of its traders, Jérôme Kerviel, had created fictitious trades to conceal one of his transactions. Societe Generale immediately put together a team of 20 people to carry out systematic searches over the weekend. On 19 and 20 January 2008, a number of massive positions totalling some €50 billion were discovered, which Jérôme Kerviel had carefully hidden through fictitious transactions.

The Bank found itself at risk of collapse. The positions taken by Jérôme Kerviel represented more than the Bank's total capital. It was therefore impossible to maintain them, for both regulatory and financial reasons. After consultation with the Governor of the Bank of France and the AMF's Secretary General, the decision was taken to close out these positions as soon as possible to secure the Bank's survival and the stability of the global financial system, which would have been threatened if the Bank had collapsed. Societe Generale thus proceeded to liquidate the fraudulent positions on Monday 21 January 2008 and the three days that followed, in the greatest of secrecy, while complying with the rules governing market operations. 

Once this process had been completed, on 24 January 2008, Societe Generale made a public announcement of the massive fraud to which it had fallen victim, and the final loss of €4.9 billion. At the same time, the Bank announced that it had secured a capital increase enabling it to absorb this loss.

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2. WHY DIDN’T THE BANK KNOW?

All those who claim that the Bank knew, or couldn’t have ‘not know’, were not directly involved in the events. Regardless of their expertise, these external commentators very likely have not read or followed the numerous legal cases brought over the past eight years! From the initial investigation by judge Renaud van Ruymbecke in 2008-2009 up to the Court of Cassation’s decision in 2014, all the rulings have unanimously and unequivocally found Jérôme Kerviel guilty of forgery and use of forged documents, breach of trust and fraudulent entry of data into an automatic processing system. These rulings mean that the Bank was the victim of fraud committed without its knowledge. Societe Generale was betrayed by Jérôme Kerviel. The transactions were concealed, hidden and justified by lies or forgery; they were fraudulent acts.

At the time of the investigation, Jérôme Kerviel himself acknowledged that his managers were not aware of his activities (before changing his defence): "I hid my positions by entering fictitious trades". "I covered up the exposure. Therefore, Societe Generale did not know about my positions”1, he said. Consequently, the Bank as not aware of his risk taking, or his gains or losses, until the fraud was discovered on 20 January 2008! If he evaded, bypassed the Bank's controls, lied and created fictitious trades to hide his positions and results, then clearly that was because
he knew that the Bank would not permit such actions.

No one could imagine for a single moment that the Bank would have taken on commitments totalling the enormous sum of nearly €50 billion, which represented one and a half times its entire capital, contravening prudential regulations and exposing the Bank to a very high risk of insolvency! The events of the weekend in January 2008 when the fraud was discovered (without Jérôme Kerviel’s cooperation, as he did not reveal the positions at risk even though he had been caught doing wrong) demonstrates the shock caused by this discovery, which put the Bank and its employees in danger.
1 : Page 28 of the Order to refer the case to the first-level criminal court (Tribunal correctionnel)

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3. THE LOSS OF €4.9 BILLION WAS AUDITED.

The €4.9 billion loss is the result of the €1.4 billion profit on unauthorised positions that was concealed by Jérôme Kerviel in 2007, less the €6.3 billion loss on the unwinding of positions totalling nearly €50 billion set up in the first weeks of January 2008.

It was necessary to unwind these positions as the Bank could not hold positions that exceeded the amount of its capital, and they had to be unwound in secret to avoid causing panic on the markets. The outcome of the closure of these positions was not important. The Bank had no choice. This decision was in accordance with market regulations, and was taken in liaison with the supervisory authorities.

We began to unwind the positions on Monday 21 January 2008, despite extremely unfavourable trading conditions. We settled all the positions over three days, in a very controlled manner, remaining within the limit of 10% of market volumes to respect market integrity. The process was very closely monitored, and has been examined during the different legal proceedings. Auditors from the French Banking Commission informed the AMF that “the positions were unwound very professionally”.

Societe Generale’s accounts were audited independently by the statutory auditors and approved by the French Banking Commission. 

The amount of the losses on Jérôme Kerviel’s unauthorised positions was €4.9 billion. The Court of Cassation definitively confirmed this in its decision of March 2014.

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4. JÉRÔME KERVIEL KNEW THAT HE HAD TO OBSERVE TRADING LIMITS; THE BANK DIDN’T ENCOURAGE HIM.

Jérôme Kerviel and his team (Delta One, which had eight traders) had a global exposure limit of €125 million that could not be breached at the end of the day; he clearly acknowledged this during the investigation. Compliance with this limit was monitored by the Bank’s risk department on a daily basis. Collective limits were sometimes overrun at the end of the day due to technical adjustments between the products bought and their hedges. Any such limit breaches must systematically be reversed immediately.

Jérôme Kerviel’s comments and behaviour during the various legal proceedings show that he was fully aware that he was in breach of the limits and that the Bank would not permit this, as demonstrated by his repeated concealment of the positions, fictitious trades, lies and forgery.

The unauthorised positions totalling €30 billion that he set up in 2007, and the €50 billion in January 2008, were concealed and their exorbitant amounts threatened the Bank’s solvency.

Jérôme Kerviel did not receive any special treatment in terms of the objectives and limits he was set. Jérôme Kerviel alleged that his limits were increased from €1 million to €5 million as a result of the Allianz affair. This is false. The increase in the risk limit depended on experience, when the trader moved from junior trader limits to standard limits. The objectives for the current year are set based on the results achieved the previous year and are not increased in relation to the amount actually achieved the previous year. This is intended to ensure that a trader can reproduce their annual results, reflecting an increase in expertise and experience (and not the winnings from forbidden bets). In 2007, Jérôme Kerviel posted a profit of €55 million, which, according to his line managers, seemed consistent with his activities, especially in view of the bullish environment for these activities.

The Bank did not encourage Jérôme Kerviel. He was caught up in a downward spiral caused by his own fraud, as seen in other cases of rogue trading. Unfortunately the Bank did not detect the fraud and was only able to stop it belatedly. Fortunately it was a rare and isolated case.

 

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5. WHAT MOTIVATED JÉRÔME KERVIEL’S ACTIONS?

It is hard to understand the ultimate aim of such large-scale fraud. The investigating judges’ order nonetheless reveals that “his attitude shows that he was not disinterested in the outcome”. Jérôme Kerviel’s fixed annual salary was €48,500 in 2007. He claimed a bonus of €600,000 for that year, following a bonus of €60,000 received in 2006, based on his “official” profits of €55 million in 2007 (and not the €1.4 billion that was hidden).

He could have been motivated by a desire for professional and material recognition.

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6. WE CHEAT TO WIN, NOT TO LOSE...

Wrong! The investigation confirmed that Kerviel’s fraudulent exposures first generated unrealised losses amounting to colossal sums. If the Bank had known about this, it would have immediately put a stop to it, as it did when it detected a forbidden directional trade in 2005. In this case, Jérôme Kerviel was given a verbal warning during a special meeting with his line managers. On the day the forbidden trade was discovered, another meeting was held with the whole team to make it clear that what Jérôme Kerviel had done was unacceptable and that it must not be repeated. In this regard, it is essential to note that Jérôme Kerviel’s line managers were not aware of the trade as he had concealed the directional position with a fictitious transaction. The gigantic positions that Jérôme Kerviel had taken represented an unrealised loss of €2.5 billion in June 2007 but ended the year with an unrealised profit of €1.4 billion.  The €1.4 billion profit at the end of 2007 was concealed by fictitious transactions, and was therefore invisible. Jérôme Kerviel admitted and acknowledged that he concealed this profit from his employer.


Jérôme Kerviel systematically concealed his positions and his profits or losses because he was fully aware that - regardless of the outcome - the Bank did not permit such practices, which were outside his assigned mandate and generated a risk liable to put the Bank under threat.

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7. THE TERMS OF DEPARTURE OF JÉRÔME KERVIEL’S LINE MANAGERS.

Most of Jérôme Kerviel’s line managers are no longer with the Bank. Some resigned and others were dismissed for failing to perform the controls that would have identified the fraud sooner, not because they knew about it.

During the legal analysis of the case brought before the Labour Court against Societe Generale by Jérôme Kerviel’s line manager, the Bank decided it would be appropriate to settle with the employee in question to avoid another legal procedure that could have led to a conviction. The damages paid correspond to the amount the Bank could have been ordered to pay by the Labour Court.

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8. HOW DO YOU EXPLAIN WHY THE FRAUD WAS NOT DETECTED DESPITE THE 75 WARNINGS?

It was Jérôme Kerviel’s fraudulent actions that caused the Bank’s control systems to fail.
The effectiveness and the variety of techniques used by Jérôme Kerviel breached the Bank’s trust. He was able to bypass the Bank’s control systems by taking every opportunity to avoid controls and any inter-departmental cross-checks.

Jérôme Kerviel took advantage of his detailed knowledge of the control systems. He was an assistant trader for over two years and had forged personal relationships with many members of the middle and back offices.

When his fictitious trades triggered alerts, he did not hesitate to lie, fabricate and produce forgeries (seven false e-mails), to provide the control departments with erroneous explanations and false evidence to ensure that his fictitious trades were accepted and to neutralise the alert.

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9. SOCIETE GENERALE WAS SANCTIONED BY THE FRENCH BANKING COMMISSION FOR SHORTCOMINGS IN ITS CONTROLS

We had controls in place, but they were evaded by the lies and forgeries perpetrated by Jérôme Kerviel and, unfortunately, we had been unable to detect the fraud before the weekend of 19-20 January 2008. They were clearly insufficient, and operated within several different departments, so there was no picture across the Bank as a whole. We have acknowledged this and have been fined by the Banking Commission.

Jérôme Kerviel took advantage of his detailed knowledge of the control systems to bypass them. He entered several hundred false trades that he deleted and then replaced to conceal his positions and gains/losses. When there were alerts, he gave false explanations, lied or created forgeries. These fraudulent actions enabled him to meticulously cover up each of the alerts that arose in various places, until the alert on 18 January that led to the fraud being discovered.

Jérôme Kerviel admitted to the allegations before the police and judges in the presence of his lawyers, but is now suggesting that the weaknesses in the Bank's controls made his managers complicit in his actions, or even that they encouraged him in his activities. Any fraud exploits the weaknesses of control and security systems but, this does not in any way lessen the seriousness of fraudulent actions.

Negligence and human failure and the existence of technical shortcomings in the Bank’s control systems that were exploited by Jérôme Kerviel in no way justify fraudulent actions by an individual that put the future of a bank and the professional safety of its employees at risk.

Among the Bank’s 2,000 traders, only Jérôme Kerviel has committed fraud on this scale.

The Bank has of course learnt the lessons and immediately put in place a wide-ranging plan to improve its control system under the name 'Fighting Back'. Remedial measures were taken to make certain operational controls and access to computer systems more secure (e.g. risk monitoring of nominal amounts, monitoring of deletions, monitoring of holiday taken). The Bank has also implemented more structural measures, notably the creation of a cross-functional supervisory and operational security department (SAFE), which acts as a formidable control tower. 

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10. What does the Bank think of the reporting of this case in the media?

Beyond the immediate actions taken to save the Bank, Societe Generale has embarked on an extensive transformation programme, in addition, drawing more generally on the lessons of the financial crisis. It has reviewed its risk policy and stepped up controls at all levels, spending more than €200 million since 2008 on strengthening the security of its market activities and improving operational efficiency. The various risk, compliance, audit and monitoring functions have also been strengthened across all the Bank's activities.

The Group has enhanced its business model and strategy by refocusing on activities for customers that contribute to financing the economy.

The Bank has changed its remuneration policies, which are now much more stringent: bonuses are now capped, deferred and subject to performance conditions over several years, with clawback clauses in case of any problems. It no longer rewards only financial performance, but also the methods and conduct by which this is achieved, and the risk management put in place to attain these goals.

It has also taken steps to change the Bank's culture by strengthening its "risk culture", with a significant campaign to raise the awareness of all the Group's employees in relation to fraud risk. It has also strengthened its values – team spirit and innovation, as well as responsibility and commitment. It is very important to the Bank that these values are integrated and reflected in exemplary conduct across its human resources policy, from recruitment to training, evaluation, job mobility and promotion.

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June 07 2016 - The French labor court (Le conseil des prud'hommes de Paris)

The Group's position:
“This decision is incomprehensible and inconsistent with the decision of the Supreme Court “Cour de cassation”, which has passed definitive sentence on Jérôme Kerviel. It is counter to the facts that have been judged. We will appeal against this decision“.