Introduction

Matrix organization

Mergers by absorption

Risks related to the expansion of the scope of criminal liability of legal entities

Validity conditions

Proof of delegation

Exemption from individual liability of delegator

Attribution of offense to legal entity

Delegations of authority

Criminal risk management within business organizations

Complicity in crimes against humanity

Breaches of secrecy

Personal data breaches

Theft

Extortion

Blackmail

Fraud

Misappropriation

Receiving/concealment of unlawfully obtained property (recel)

Attacks on automated data processing systems

Money laundering

Misappropriation by public official (concussion)

Corruption and influence peddling

Unlawful acquisition of an interest

Favoritism

Forgery and use of forgeries

Violation of Criminal Code

Offenses under the Monetary and Financial Code

Offenses under the Commercial Code

Environmental Code violations

Offenses arising from other codes

Types of offenses

Offenses under the Criminal Code, the Commercial Code, or the Environmental Code, Criminal procedure

White Collar Crime (en cours)

Market abuse, according to Regulation No 596/2014 of 16 April 2014 ,“harms the integrity of financial markets and public confidence in securities and derivatives” (recital 2). It states that the concept of market abuse encompasses “unlawful behavior in the financial markets, such as insider dealing, unlawful disclosure of inside information, and market manipulation” (Recital 7). Potential participants in negotiations on listed securities, who possess decisive information on prices, are subject to an absolute obligation of abstention  and confidentiality . If they hold information not yet known to the public, they are prohibited from using it to intervene in the market, under penalty of eliminating or attempting to eliminate the speculative risk of the market, necessary for its regular and transparent functioning.

Carrying out a stock market transaction based on insider information, recommending to someone else that they carry out a stock market transaction based on that information, using this recommendation , or unlawfully disclosing this information , all constitute insider trading. Conducting a transaction that gives false or misleading signals about the price of a financial instrument or that secures or is likely to secure the price of a financial instrument at an abnormal or artificial level, constitute market manipulations . These behaviors fall under both criminal and administrative regulations related to financial markets.

Concerned with ensuring the integrity of financial markets and protecting investors, who are supposed to act on the market on an equal footing, the legislator incorporated market abuse into the French system as early as 1970, within Article 10-1 of Ordinance No 67-833 of 28 September 1967 , which became Article L. 465-1 of the Monetary and Financial Code , amended in 2016 , and which today criminalizes insider trading. The 1967 ordinance also established the Commission des opérations de bourse (COB) , which became the Autorité des marchés financiers (AMF) in 2003 , and was granted regulatory and sanctioning powers over stock market violations . In 2004 , it adopted its own general regulation (RGAMF), within which Book VI prohibited, until 2016, insider violations, just as the Monetary and Financial Code prohibited insider offenses. Thus, two distinct sets of rules governed market abuse, this overlap being likely to infringe on the principle of necessity of offenses and penalties , according to the Constitutional Council , since the sanctions for insider trading and insider violations could not be regarded as different in nature under distinct rules before their own jurisdictional order.

Within the European Union, the institutions have been striving since 2003  to establish a common legal framework for all Member States and to define the contours of the securities field with the aim of ensuring an “integrated, efficient, and transparent” financial market . Furthermore, based on the observation that the adoption of administrative sanctions proves insufficient to ensure compliance with the rules on the prevention and fight against market abuse, the European institutions also adopted Directive No 2014/57 , which complements the legal framework and requires member states to criminalize at least the serious forms of insider trading, market manipulation, and unlawful disclosure of insider information when committed intentionally .

Following the adoption of Regulation No 596/2014 and the decision of the Constitutional Council sanctioning the accumulation of penalties in the matter of stock market offenses, the French legislator has profoundly modified the regime of market abuse, which is defined and sanctioned within the Monetary and Financial Code by Articles L. 465-1 to L. 465-3-6 for criminally punished market transparency violations, and Article L. 621-15 for administrative sanctions , leading to the overhaul of the general regulations of the Financial Markets Authority . In doing so, the law ended the accumulation of criminal and administrative sanctions for market abuse and aligned criminal repression with administrative repression. Thus, the AMF's sanctions commission cannot initiate sanction proceedings if public action is initiated. The same applies to the public prosecutor, who cannot initiate public prosecution proceedings if the AMF has issued a Statement of Objections.

Regulation No 596/2014 of 16 April 2014, on market abuse and repealing Directive No 2003/6/EC and Directives No 2003/125/EC and No 2004/72/EC, OJ L 173/1 of 12 June 2014, 1.

AMF, 4 December 2008, LawLex202300002026JBJ; 11 December 2008, LawLex202300005880JBJ.

Law No 2003-706 of 1 August 2003, on financial security.

Law No 85-1321 of 14 December 1985, amending various provisions of the law on securities, negotiable debt instruments, companies, and stock exchange operations; Law No 89-531 of 2 August 1989, relating to the security and transparency of the financial market.

Law No 2003-706 of 1 August 2003 transposing Directive No 2003/6/EC of 28 January 2003, which replaced COB regulations 90-08 and 90-04 with the general regulation of the AMF published on 24 November 2004.

Art. 8 of the Declaration of the Rights of Man and of the Citizen of 1789.

Cons. const., decision of 18 March 2015, LawLex202200011270JBJ.

Directive No 2003/6 of 28 January 2003 on insider dealing and market manipulations.

Recitals 2 and 4 of Regulation No 596/2014.

Directive No 2014/57 of 16 April 2014, on criminal sanctions for market abuse (Market Abuse Directive), OJ L 173 of 12 June 2014.

Law No 2016-819 of 21 June 2016, reforming the system of market abuse enforcement, OJ of 22 June 2016.

Order of 14 September 2016, OJ of 23 September 2016.

See Art. 8 of Regulation No 596/2014, which defines insider dealing.

See Art. 10 of Regulation No 596/2014, which defines the unlawful disclosure of insider information.

See Art. 12 of Regulation No 596/2014, which defines market manipulations.

Law No 70-1203 of 23 December 1970 amending Law No 66-537 of 24 July 1966 on commercial companies; Ordinance of 28 September 1967 establishing the Financial Markets Authority and relating to the information of securities holders and the disclosure of certain stock market operations.

Ordinance 2000-1223 of 14 December 2000 relating to the legislative part of the Monetary and Financial Code.

Law No 2016-819 of 21 June 2016 reforming the system of market abuse sanctions, OJ of 22 June 2016.

Ordinnce 67-833 of 28 September 1967 establishing a Securities and Exchange Commission and relating to the information of securities holders and the disclosure of certain stock exchange operations.

167. Market abuse