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)

The repression of market abuse has been the subject of significant litigation regarding the principle of double prosecution. Indeed, until 2015, the principle of non bis in idem was not applicable in this matter. The Constitutional Council allowed a possible combination of administrative and criminal prosecutions and sanctions against the perpetrator of the same act, provided that the principle of …

Cumulative administrative and criminal sanctions

The repression of market abuse has been the subject of significant litigation regarding the principle of double prosecution. Indeed, until 2015, the principle of non bis in idem was not applicable in this matter. The Constitutional Council allowed a possible combination of administrative and criminal prosecutions and sanctions against the perpetrator of the same act, provided that the principle of proportionality was respected, meaning that the total amount of sanctions imposed did not exceed the highest amount of one of the sanctions incurred .

This solution was based on the reservation made by France upon ratifying Additional Protocol No 7 to the ECHR , which maintained that under domestic law, only those offenses falling within the jurisdiction of criminal courts could constitute offenses within the meaning of the protocol. The ne bis in idem priciple was therefore only intended to apply in France to offenses under the jurisdiction of courts ruling in criminal matters and did not prohibit the imposition of administrative sanctions alongside those imposed by criminal courts. The Court of Cassation upheld the possibility of cumulative sanctions not only based on the reservations made by France regarding Protocol No 7 , but also pursuant to Article 50 of the Charter of Fundamental Rights of the European Union , which, according to it, does not preclude a person sanctioned for a breach under the jurisdiction of the Financial Markets Authority from being prosecuted and convicted for an offense due to the same facts, provided that such cumulative proceedings ensures an effective, proportionate, and dissuasive sanction .

However, following the conviction of Italy by the European Court of Human Rights for administratively sanctioning a company director, who was simultaneously prosecuted criminally for the same acts of disseminating false information on the market , the Constitutional Council declared the provisions of Article L. 465-1  and Article L. 621-15 of the Monetary and Financial Code , as well as those of Articles L. 466-1, L. 621-15-1, L. 621-16, and L. 621-16-1, which are inseparable , to be contrary to the Constitution on the grounds that their combination infringes on the principle of necessity of penalties in Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789. The Council considered that both repressions protect the same social interests, result in the imposition of sanctions of the same nature, and that the prosecutions and sanctions imposed fall under the same jurisdiction, with the examination of appeals falling under the competence of the Paris Court of Appeal .

To address this prohibition on the accumulation of administrative and criminal sanctions, the law of 21 June 2016 reformed the system for punishing market abuse and established in Articles L. 465-3-6 and L. 621-15 of the Monetary and Financial Code a new mechanism that allows the coexistence of both systems, administrative and criminal, through an alternative choice of prosecution for the offense. This system imposes a mutual obligation of information and consultation between the National Financial Prosecutor's Office and the Board of the Financial Markets Authority, before any notification of grievances by the AMF or initiation of public action by the financial public prosecutor, regarding the choice of type of repression, administrative or criminal, to adopt. It is now provided that if the AMF does not intend to issue a statement of objections, public prosecution may be initiated; conversely, if the public prosecutor does not intend to initiate public prosecution, the AMF may issue a statement of objections. Any disagreement between the prosecutor and the AMF falls under the arbitration of the Chief Prosecutor at the Paris Court of Appeal. Since this prohibition on dual proceedings only entered into force on 23 June 2016, no legislative provision, however, prohibits the combination of proceedings and sanctions for the offense and the breach of disseminating false information when both the initiation of public prosecution and the issuance of the statement of objections occurred before that date .

Since then, the European Court of Human Rights seems to have partially reconsidered the prohibition on cumulation. In a decision dated 15 November 2016, it held that double criminal and administrative penalties may be possible without violating Article 4 of Protocol No 7, provided that the administrative and criminal procedures are mixed, meaning they are linked by a sufficiently close material and temporal connection and combine in an integrated manner into a coherent whole . However, it condemned France on 6 June 2019 , due to the absence of a sufficiently close material link, considering the identity of the objectives pursued by the procedures before the AMF and the criminal courts, and especially, a sufficiently close temporal link to consider the procedures as part of the integrated sanction mechanism provided by French law.

For its part, the Court of Justice has acknowledged that the Member States of the European Union may, under certain conditions, allow the combination of administrative and criminal sanctions when “those proceedings and penalties have, for the purpose of achieving such an objective, additional complementary objectives  covering, as the case may be, different aspects of the same unlawful  conduct at issue” .

On the other hand, in the case of mixed prosecutions, the ne bis in idem rule does not apply as long as the charges are based on facts that are substantively different from those sanctioned by the administrative authority. This is the case for offenses of forgery, use of forgeries, presentation of inaccurate annual accounts, and dissemination of false or misleading information .

Cons. constit., 28 July 1989, LawLex202300001052JBJ.

Article 4 thereof sets out the ne bis in idem rule

Cons. constit., 30 September 2016, LawLex202200011305JBJ.

ECHR, 15 November 2016, No 24130/11 and 29758/11, for a case rendered in tax matters, the court specifying that this means not only that the pursued objectives and the means used to achieve them must be substantively complementary and present a temporal link, but also that any potential consequences arising from such an organization of the legal treatment of the behavior in question must be proportionate and foreseeable for the litigant.

ECHR, 6 June 2019, “Nodet v. France”, LawLex202200011397JBJ.

CJEU, Joined Cases C‑596/16 and C‑597/16 Enzo Di Puma, Judgment of 20 March 2018, LawLex202600000100JBJ; Case C-524/15 Tribunale di Bergamo v Luca Menci, Judgment of 20 March 2018, LawLex202600000101JBJ.

Cass. crim., 13 April 2022, LawLex202200009791JBJ.

Cass. com., 8 February 2011, LawLex202200011254JBJ.

Establishing the right not to be tried or punished twice for the same criminal law offense.

Cass. crim., 22 January 2014, LawLex202300004667JBJ.

ECHR, 4 March 2014, LawLex202200011275JBJ.

In its wording resulting from Law No 2005-842 of 26 July 2005 for confidence and the modernization of the economy.

In its wording resulting from Law No 2008-776 of 4 August 2008 on the modernization of the economy.

In their wording resulting from Financial Security Law No 2003-706 of 1 August 2003.

CC, 18 March 2015, No 2014-453/454 QPC, LawLex202200011270JBJ.

White Collar Crime (en cours)

181. Cumulative administrative and criminal sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

181. Cumulative administrative and criminal sanctions

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise