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 public official must, at the time of the act, be responsible for ensuring oversight, administration, liquidation, or payment in the undertakings or operations in question (Art. 432-12 Criminal Code) or, in the case of judges or persons exercising judicial functions, be responsible for making a judicial or jurisdictional decision regarding them (Art. 432-12-1 Criminal Code). The offense cannot, …

Oversight and administration

The public official must, at the time of the act, be responsible for ensuring oversight, administration, liquidation, or payment in the undertakings or operations in question (Art. 432-12 Criminal Code) or, in the case of judges or persons exercising judicial functions, be responsible for making a judicial or jurisdictional decision regarding them (Art. 432-12-1 Criminal Code). The offense cannot, in fact, be established in the absence of acts of administration or supervision .

When the public official personally has management or decision-making power due to their skills or duties, they will be considered, de facto, as being in charge of administration or oversight. Indeed, the Court of Cassation's criminal chamber considers that the responsibility for the administration of the municipality and the management of municipal assets, assigned to the mayor, implies the supervision and administration of the assets , that the president of the departmental council alone has the administration of all departmental affairs , or the mayor of all municipal affairs .

It is immaterial whether this authority is exclusive or shared. The provision specifies, in fact, that the perpetrator of the offense must have, at the time of the act, “in whole or in part,” the responsibility to oversee the undertaking or the operation. Therefore, the president of the finance committee of a departmental council, although sharing his prerogatives with others for the purpose of making collective decisions, ensures the administration or oversight of the granting of subsidies to local authorities . Similarly, the delegation of signature by the public official does not imply a loss of this responsibility .

It is also irrelevant, at least for the persons targeted by Article 412-12, whether it is an actual legal power  or a decision-making power: the offense of unlawful taking of an interest is established even if the agent's role is limited to mere powers of preparation, proposal, or advice regarding decisions made by others . This is the case for a deputy who contributes to the execution of the act or operation by preparing the application file for the use of their parliamentary reserve to allocate a subsidy to the association they preside over . A presumption of supervisory power weighs on the perpetrator of the offense as soon as it concerns a matter for which they are responsible. Indeed, their mere participation in a deliberative body is sufficient to establish supervision or administration . It is not necessary for them to have a deliberative vote , to have abstained from voting , or for the decision to result from a vote . Thus, the offense is constituted when a territorial councilor has given proxy to another elected official to participate in the deliberation granting public aid to the company they manage . Similarly, the fact that the perpetrator of the offense did not participate in the discussions preceding the vote in favor of a gratuitous waiver of unpaid fees by a company they manage and own shares in, or that this vote was merely formal, does not prevent the classification of unlawful taking of interest .

Cass. crim., 21 March 2012, LawLex202300001815JBJ.

Cass. crim., 20 June 2002, LawLex202300001959JBJ; 23 February 2011, LawLex202300002456JBJ.

Cass. crim., 12 July 2016, LawLex202300001912JBJ.

Cass. crim., 14 November 2007, No 07-80.220, LawLex202300001586JBJ; 9 February 2011, No 10-82.988, LawLex202300001813JBJ; 23 February 2011, No 10-82.880, LawLex202300002456JBJ.

Cass. crim., 9 February 2011, LawLex202300001813JBJ, which emphasizes that the active role of a vice-president of a commission in the decision-making process could only influence the other elected members of this body, as there was no actual vote and the subsidies were declared granted if there was no enforcement.

Cass. crim., 10 April 2002, LawLex202300001594JBJ.

Cass. crim., 21 November 2001, No 00-87.532, LawLex202300001725JBJ.

Cass. crim., 9 February 2005, LawLex202200008749JBJ.

Cass. crim., 7 March 2012, LawLex202300001816JBJ. See notably Cass. crim., 4 March 2020, No 19-83.390, LawLex202200008744JBJ8, on the powers of the mayor in recruitment matters; Cass. crim., 31 January 2018, No 17-81.876, LawLex202300002454JBJ, regarding land use plans.

Cass. crim., 25 January 2006, No 05-84.782, LawLex202300002452JBJ.

Cass. crim., 27 November 2002, LawLex202200008531JBJ; 9 February 2005, LawLex202200008749JBJ; 30 November 2005, LawLex202300002350JBJ.

Cass. crim., 27 June 2018, LawLex202200008755JBJ.

Cass. crim., 22 September 1998, LawLex202300002354JBJ; 14 June 2000, LawLex202300000142JBJ; 9 March 2005, LawLex202300000146JBJ; 14 December 2005, LawLex202300001730JBJ; 28 February 2007, LawLex202200008624JBJ; 9 February 2011, LawLex202300001813JBJ; 13 January 2016, LawLex202300001733JBJ; 27 June 2018, LawLex202200008755JBJ.

Cass. crim., 19 May 1999, No 98-80.726, LawLex202300002453JBJ; 24 May 2016, LawLex202300001834JBJ; 20 January 2021, No 19-86.702, LawLex202200009137JBJ.

White Collar Crime (en cours)

145. Oversight and administration

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

145. Oversight and administration

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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