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)

Article 432-13 of the Criminal Code penalizes the act, for a former public official,  to take or receive a participation through work, advice,  or capital in a private undertaking, as well as participation through work, advice, or capital in a private undertaking that holds at least 30% of common capital, or that has entered into a contract involving exclusivity in law or in fact with one of these …

Former public servant

Article 432-13 of the Criminal Code penalizes the act, for a former public official,  to take or receive a participation through work, advice,  or capital in a private undertaking, as well as participation through work, advice, or capital in a private undertaking that holds at least 30% of common capital, or that has entered into a contract involving exclusivity in law or in fact with one of these undertakings.

The concept of a private undertaking is understood broadly: it can refer to a public establishment, a public undertaking, or a mixed economy company in which the State directly or indirectly holds more than 50% of the capital and operates publicly (Art. 432-13, para. 4, Criminal Code) , as well as any public undertaking operating in a competitive sector and in accordance with private law rules, which will be assimilated to a private undertaking (Art. 432-13, para. 3, Criminal Code).

It is required that the former public official, within the scope of the functions they actually performed, was tasked either with ensuring the supervision or control of a private undertaking, concluding contracts with it or providing an opinion on such contracts, proposing decisions directly to the competent authority regarding operations carried out by this undertaking, or even providing an opinion on such decisions . The fact that a person was in a position to be aware of information related to an undertaking, due to their position as vice-president of the Competition Authority, cannot characterize supervision or control over this company . However, only acts that occurred within three years following the cessation of the offender's duties are concerned (Art. 432-13, para. 1, Criminal Code) .

Furthermore, Article 432-13 of the Criminal Code does not require that the intervention of the public official be part of the formalized process of administrative decisions. Thus, the Deputy Secretary General to the Presidency of the Republic, responsible for financial and industrial affairs, who oversees the merger and recapitalization operation of banking institutions without intervening in the administrative decision-making process, may be prosecuted for unlawful taking of interest .

Finally, Article 432-13 of the Criminal Code provides, in fine, that the mere participation in the capital of publicly traded companies or the capital received by inheritance does not constitute the offense.

The provision targets a person who has been entrusted, as a member of the Government, member of an independent administrative authority or an independent public authority, holder of a local executive function, civil servant, military personnel, or agent of a public administration, within the scope of the functions they have actually performed.

The specific modalities of the advice provided by the former public official are irrelevant: Cass. crim., 18 July 1984, LawLex202300000139JBJ.

Cass. crim., 22 October 2014, LawLex202300000136JBJ.

Cass. crim., 11 May 2022, LawLex202300000135JBJ.

Cass. crim., 13 September 2023, LawLex202400005250JBJ.

Five years following the cessation of the public official's duties before Law No 2007-148 of 2 February 2007 on the modernization of the civil service; Cass. crim., 13 September 2023, LawLex202400005250JBJ.

Cass. crim., 27 June 2012, LawLex202200008529JBJ.

White Collar Crime (en cours)

146. Former public servant

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146. Former public servant

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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