All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

Since 1993, the principle of criminal immunity for legal entities has disappeared. Now, under Article 121-2 of the Penal Code, companies with legal personality can be held criminally liable. According to the text, legal entities are criminally responsible for offenses committed on their behalf by their organs or representatives. In fact, a legal entity cannot be criminally convicted for offenses committed on its behalf without the judge having precisely determined by which organ or representative the offenses were committed . Thus, in the absence of identification of the organ or individuals representing the legal entity who knowingly organized the concealment of checks from misuse of company assets, its criminal liability cannot be engaged . Similarly, the criminal liability of a legal entity, in relation to a workplace accident suffered by an employee, can only be engaged if the offense in question results from the failure to provide practical and appropriate training, emanating from one of its organs or representatives . Conversely, faults attributable to the director of an establishment, holding a delegation of powers in matters of safety , or to the person to whom the latter has sub-delegated his powers , and who, as such, has the status of organ or representative of the company, allow for the criminal liability of the legal entity to be engaged.

Article 121-2 also provides in its paragraph 3 that the criminal liability of legal entities does not exclude that of natural persons who are perpetrators or accomplices of the same acts. Thus, a manager guilty of complicity in the misuse of company assets to the detriment of a company commits an intentional and personal criminal fault, inherently separable from their functions, even if it occurred within the scope of those functions, and cannot turn against their company to have it bear the consequences of this fault .

A company that is subject to a criminal conviction may be fined, provided that the fine is justified by taking into account its expenses and resources .

Cass. crim., 9 March 2021, LawLex202100004648JBJ; 10 December 2019, LawLex202200007745JBJ; 11 October 2011, LawLex202200002801JBJ; 1 April 2014, LawLex202200001386JBJ.

Cass. crim., 20 January 2021, LawLex202200011444JBJ.

Cass. crim., 11 April 2012, LawLex202200002166JBJ.

Cass. crim., 15 May 2007, LawLex202200007747JBJ.

Cass. crim., 25 March 2014, LawLex202200001399JBJ.

Cass. com., 18 September 2019, LawLex202200007575JBJ.

Cass. crim., 9 January 2018, LawLex202200007595JBJ.

49. Principle and applications