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)

In cases of market abuse, jurisdiction is shared between the judicial court and the financial markets authority, the Autorité des marchés financiers (AMF). Indeed, the legislator has granted the financial public prosecutor and the Paris trial courts exclusive and national jurisdiction for the prosecution and adjudication of market abuses provided for in Articles L. 465-1 to L. 465-3-3 of the Monet …

Criminal or administrative sanctions

In cases of market abuse, jurisdiction is shared between the judicial court and the financial markets authority, the Autorité des marchés financiers (AMF). Indeed, the legislator has granted the financial public prosecutor and the Paris trial courts exclusive and national jurisdiction for the prosecution and adjudication of market abuses provided for in Articles L. 465-1 to L. 465-3-3 of the Monetary and Financial Code (Art. 705-1 Code of Criminal Procedure), while the AMF's Sanctions Commission  has been given the authority to impose sanctions on financial intermediation professionals under Article L. 621-9 for their professional misconduct, as well as on non-professionals who have engaged or attempted to engage in the market violations provided for in Article L. 621-15.

Pursuant to Articles L. 465-3-6 and L. 621-15 of the Monetary and Financial Code, the perpetrator of a breach of market transparency may either be prosecuted by the financial public prosecutor on the basis of Articles L. 465-1 to L. 465-3-3, or be subject to a notification of grievances by the AMF in accordance with Article L. 621-15. This notification must inform the prosecutor of behaviors likely to lead to criminal prosecution, and the latter must notify the AMF when he initiates a public action for behaviors for which it has issued a statement of objection of objections. According to the Court of Cassation, the statement of objections for the dissemination of false or misleading information results in the extinction of the public action for the offense of disseminating misleading information .

Pursuant to Article L. 465-1, I, A of the Monetary and Financial Code, insider dealing is punishable by five years of imprisonment and a fine of EUR 100 million. That amount may be increased up to ten times the amount of the benefit derived from the offense, without the fine being less than this benefit. The related offenses (Art. L. 465-2 and L. 465-3 of the Monetary and Financial Code), the offense of disseminating information (L. 465-3-2 of the Monetary and Financial Code), and market manipulations (Art. L. 465-3-1 to L. 465-3-3 of the Monetary and Financial Code), as well as attempts, are subject to the same penalties.

If a legal entity commits one of the offenses under Articles L. 465-1 to L. 465-3-3, the maximum fine rate will, pursuant to Articles 131-38 and 131-39 of the Criminal Code and L. 465-3-5 of the Monetary and Financial Code, be equal to five times that provided for natural persons, and the fine may be increased to 15% of the total annual turnover . Similarly, the criminal court may order the dissolution of the legal entity or the prohibition of the activity during or on the occasion of which the offense was committed, either permanently or for a period of up to 5 years (Art. 131-39 Criminal Code). The Court of Cassation has held that a legal entity must be held liable when its employee, who was given authority by management to execute client orders and represented the establishment to them, did not act on their own initiative but for the benefit of the company and after informing their hierarchy, which did not prohibit them from proceeding, actively participated in the artificial increase of stock prices and conducted buy-sell operations involving increasing volumes, creating the impression of market volumes that were in fact fictitious .

For its part, the AMF sanctions commission may impose on a professional engaged in financial intermediation  a warning, a reprimand, a temporary or permanent ban on exercising all or part of the services provided, removal from the register of financial intermediaries, plus a financial penalty not exceeding EUR 100 million or ten times the amount of the benefit derived from the breach if it can be determined (Art. L. 621-15, III, Monetary and Financial Code). Non-professionals who engage in, or attempt to engage in, insider dealing or market manipulation are subject to the same financial penalty, taking into account the circumstances of the offense and the personality of its perpetrator. The Sanctions Commission must, in all cases, set the amount of the fine in compliance with the principle of proportionality, based in particular on the seriousness and duration of the breach committed and the advantages or profits derived from this breach (Art. L. 621-15, III ter, Monetary and Financial Code) . The decision of the Sanctions Commission may also, pursuant to Article L. 621-15, V, of the Monetary and Financial Code, be published “in publications, newspapers, or media, in a format proportionate to the fault committed and the sanction imposed.” This publication, subject to serious disruptions of financial markets or disproportionate harm caused to the parties , “allows the Commission to take into account the general interest requirements related to market fairness, transaction transparency, and investor protection that underpin its sanctioning power, as well as the interest attached to legal certainty for all operators so that they can, by accessing its decisions, know its interpretation of the rules they must observe” .

Finally, market abuse causes direct harm not only to the shareholders , but also to the company that suffers the consequences . Thus, the offense of disseminating false information results in both material and moral harm to the victim company, which had to make significant investments to maintain its financial reputation distorted by the false information . The Financial Markets Authority may also exercise the rights of the civil party when proceedings are initiated pursuant to Articles L. 465-1 to L. 465-3-3 of the Monetary and Financial Code (Art. L. 621-16-1 Monetary and Financial Code).

Established by the Financial Security Act 2003-706 of 1 August 2003.

Cass. crim., 13 April 2022, LawLex202200009791JBJ, which adds that the statement of objections of cannot, however, have the effect of extinguishing the public prosecution for the offenses of forgery and use, and presentation of inaccurate annual accounts.

T. com. Paris, 12 January 2004, LawLex202200011349JBJ.

Within the meaning of the last paragraph of III bis of Article L 621-15 of the Monetary and Financial Code.

Cass. crim., 28 January 2009, LawLex202200001499JBJ. See also CA Paris, 26 November 2008, LawLex202300000700JBJ

Persons mentioned in 1° to 8°, 10° bis, 11°, 12°, 15° to 19°, 21° and 22° of II of Article L. 621-9 of the Monetary and Financial Code.

To apply the principle of proportionality in setting a penalty for the dissemination of false information, see CA Paris, 1 April 2003, LawLex202300002121JBJ, which specifies that the particular situation of the offender must be taken into account, who did not derive personal benefit from the noted breaches and whose relative inexperience in the financial field did not allow him to perceive the unsatisfactory conditions in which the exceptional rapidity of his company's growth was accompanied by his various partners; 30 March 2010, LawLex202300005773JBJ, which considers that the amount of the advantage obtained by using inside information during the sale is accurately assessed by the Sanctions Commission by multiplying the number of shares sold by the difference between the average sale price and the average price reached after the announcement of the appointment of an ad hoc representative.

AMF, 21 June 2007, LawLex202300005783JBJ.

AMF, 15 October 2009, LawLex202300005775JBJ.

Cass. crim., 11 December 2002, LawLex202200011009JBJ.

Cass. crim., 29 November 2000, LawLex202200009786JBJ.

White Collar Crime (en cours)

180. Criminal or administrative sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

180. Criminal or administrative sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise