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)

Water pollution offenses are negligence offenses for which intent is not required . The defendant, who neither intended nor sought the harmful result for the environment, must have committed one of the faults listed in Article 121-3 of the Criminal Code, namely either a deliberate endangerment of another person (para. 2), a simple fault (para. 3), or a qualified fault (para. 4).
The offense of del …

Requirement of fault

Water pollution offenses are negligence offenses for which intent is not required . The defendant, who neither intended nor sought the harmful result for the environment, must have committed one of the faults listed in Article 121-3 of the Criminal Code, namely either a deliberate endangerment of another person (para. 2), a simple fault (para. 3), or a qualified fault (para. 4).

The offense of deliberately endangering the person of another consists of a willful breach of a general obligation of safety or caution imposed by law or regulation, which the defendant knows to be risky for others (Art. 121-3, para. 2).

A simple fault may result from the negligence or carelessness of the defendant, who did not carry out normal diligence, considering the nature of their missions or functions, their skills, or the power and means at their disposal, or from the violation of a duty of care or safety provided by law or regulation (Art. 121-3, para. 3). Thus, a simple fault is committed by the company operating a classified installation for environmental protection, which, having been aware of pollution related to the discharge of leachate into a watercourse, continued its transit and composting activities, when it should have ordered the holder of the administrative authorization to carry out the necessary work and terminated the contract if compliance was not achieved . This is also the case for the defendant who did not sufficiently monitor the sludge filtering system and did not check the good condition of the sluice gate shovel, whose breakage facilitated the release of sediments , or the mayor of a municipality who did not take the necessary measures to prevent pollution caused by slurry runoff from agricultural operations into the municipal network . Similarly, a simple fault must be held against the defendant who knowingly violated clauses of the public works contract under which they acted, which provided for the evacuation of materials to land deposits or possible river dumping, as they did not perform normal diligence considering their skills, powers, and means .

Since the so-called Fauchon Law of 10 July 2000 , to establish the existence of a crime of negligence, it is necessary to classify the causal link (direct or indirect) between the perpetrator's fault and the resulting harm, prior to characterizing the fault. Indeed, the nature of the fault to be demonstrated will depend on this link. If the causal link is direct, a simple fault will suffice to establish the crime. However, if the link is indirect, meaning the defendant did not directly cause the damage but contributed to creating the situation that allowed the damage to occur or failed to take measures to prevent it, the fault must be classified (Art. 121-3, para. 4). If the fault committed is more serious than what is required, the crime will be, a fortiori, established.

Qualified fault can be deliberate or characterized. A fault is deliberate when the defendant consciously and voluntarily violates a safety or prudence obligation, without intending the harmful consequences that may result. It must be a specific obligation. The fault can be deemed deliberate when cyanide-laden waters from a deburring workshop are discharged into a settling pit before flowing into a river, without any filtering device being implemented, as the defendant did not comply with a prefectural order requiring a thorough diagnosis and risk assessment of soil and groundwater pollution induced by the site's activity , or when an accidental fire leads to the discharge of harmful substances into groundwater or surface water, as the defendant did not take the measures the Administration had requested for many years to prevent this pollution .

The fault is established when the defendant is aware of the risk of particular severity to which they expose others, or when they cannot ignore it due to their position. Thus, such a risk cannot be ignored by the manager of a company manufacturing bleach, who did not ensure the proper functioning of the lagooning system for the washing area of their factory, even though the company had previously been alerted to chlorine discharges by the Administration and the National Office for Water and Aquatic Environments , by the business owner who did not train their staff to respond to operational issues with pumping and wastewater treatment equipment and did not provide instructions to implement in case of an incident , or by the co-manager of a transport company who did not take sufficient measures to prevent pollution, even though the problem had been recurring for several years, was known to the defendant, and several complaints had already been filed by their neighbor . The risk also cannot be ignored by the experienced farmer who conducted a dangerous transport of a tank filled with chemicals, resulting in the spillage of toxic substances on the roadway and ditches of departmental roads leading to a ditch that flowed into ponds, while they could not ignore the danger of the transport and the fact that it required precautions they deliberately did not take . Also aware of the severity of the risk are the general manager of a company who neither organized nor implemented control measures for the wastewater network installations of their factory under their delegated managerial authority, and who was obliged to comply with the requirements of a prefectural order , the technical director of an automotive company, who did not provide sufficient prevention instructions to avoid pollution , or the regional director of a wastewater treatment plant, a highly competent technical professional, who initiated and continued work despite knowing its polluting nature and the irreversible damage that would result, and who did not take precautionary measures to ensure the protection and preservation of river and marine aquatic fauna . However, qualified fault cannot be attributed to legal entities, which can only be convicted, in cases of indirect causality, due to the simple fault of one of their bodies or representatives.

If water pollution offenses are, in principle, offenses of negligence, the Criminal Chamber has considered that Article L. 216-6 also punishes intentional discharges into surface or groundwater that cause harm to fauna or flora. It thus upheld the offense against a defendant who deliberately loaded blackish sludge from a water treatment plant onto trucks, knowing that it released residues that an employee, using a water jet, directed towards the stormwater collector .

Cass. crim., 24 January 2012, LawLex202300001329JBJ.

Cass. crim., 13 January 2015, LawLex202300001320JBJ.

Cass. crim., 19 April 2017, LawLex202300008489JBJ.

CA Versailles, 15 October 2014, LawLex202300000940JBJ.

Cass. crim., 23 March 2004, LawLex202300008820JBJ.

Cass. crim., 19 October 2004, LawLex202200001485JBJ.

Cass. crim., 25 October 1995, LawLex202300008495JBJ.

Cass. crim., 16 January 2007, LawLex202300001068JBJ.

Cass. crim., 7 November 2006, LawLex202300008492JBJ.

Cass. crim., 18 July 1995, LawLex202300008819JBJ.

Cass. crim., 2 July 1998, LawLex202300008818JBJ.

Law No 2000-647 of 10 July 2000 aimed at clarifying the definition of non-intentional offenses, OJ of 11 July 2000.

Cass. crim., 7 February 2012, LawLex202300001326JBJ.

Cass. crim., 28 June 2017, LawLex202300001327JBJ.

Cass. crim., 4 May 1999, LawLex202300008824JBJ.

White Collar Crime (en cours)

216. Requirement of fault

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

216. Requirement of fault

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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