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 delegation must be justified in view of the size of the undertaking, its activities, and its internal organization. Delegation of authority is essential in large undertakings because the manager cannot oversee all activities and compliance with all applicable regulations alone. Conversely, delegation of authority is not acceptable in smaller undertakings, as the business owner can and indeed m …

Content of the delegation

The delegation must be justified in view of the size of the undertaking, its activities, and its internal organization. Delegation of authority is essential in large undertakings because the manager cannot oversee all activities and compliance with all applicable regulations alone. Conversely, delegation of authority is not acceptable in smaller undertakings, as the business owner can and indeed must assume their functions alone. An artificial delegation of authority will therefore be rendered ineffective by the courts.

In order to transfer powers and criminal liability to the delegatee, the delegation must be definite and free of ambiguity . Wording that is too vague or overly general will render the delegation ineffective . The delegation must specifically target the areas in which criminal liability is transferred to the employee and cannot be extended beyond the limits it defines . Therefore, particular care should be taken in drafting the delegation document. It is recommended to stipulate the domain and scope of the delegation by specifying its purpose, the extent of the powers conferred to the delegatee, the regulations they are responsible for enforcing and complying with, as well as the means at their disposal to achieve this, its effective date, and its duration. The delegation of authority must be long-term and provide the delegatee with a certain stability. Although no minimum duration is required by the courts, the delegatee must have had time to complete the tasks assigned to them; otherwise, they will have been unable to enforce the regulations and thus prevent the offense. To allow for the exemption of the delegator, the delegation document must be prior to the commission of the acts constituting the offense .

It is important to ensure regular monitoring of delegations of authority granted, especially in the event of a merger by absorption. Indeed, this, because it results in the creation of a company distinct from the previous one and a change of corporate officer, is likely to render void a delegation of authority granted to an employee of the absorbed company .

Case law strictly excludes the accumulation of delegations of powers . A distinction must be made between co-delegations, which involve multiple delegations for the performance of the same task and are sanctioned with nullity by the courts, from multiple delegations, which are accepted as long as they establish various delegations for the accomplishment of different tasks. Co-delegation is deemed invalid because it deprives each delegatee of the authority and the independence necessary to carry out the mission delegated to them thereby hindering their initiatives . The multiplication of delegations for the same purpose therefore equates to their absence due to the proven risk of paralysis it creates. The concurrent and ambiguous nature of two granted delegations does not allow the business leader to exempt themselves from the personal liability incumbent upon them in this capacity .

Like delegations, sub-delegations are permitted and follow the same conditions as the former : their validity is not subject to the authorization of the head of the company, as long as they are regularly granted and the sub-delegatee is endowed with the competence, authority, and means necessary to accomplish their mission .

As a precaution, it is preferable either to expressly provide for the possibility for the delegatee to sub-delegate their powers in the delegation of powers, specifying that there should be no accumulation of delegation, or, conversely, to formalize the manager's refusal to authorize a sub-delegation.

Finally, a delegation of authority must be signed by both the delegator and the delegatee . In effect, the delegation of authority granted to an employee who has not signed it, exercises the delegated activity gratuitously, and uses means belonging to a legal entity distinct from the one managed by the delegator, cannot exempt the latter .

Cass. crim., 25 January 2000, No 99-82.123, LawLex202200002516JBJ; 30 May 2000, No 99-86.695, LawLex202200002670JBJ.

Cass. crim., 2 February 1993, No 92-80.672, LawLex202200002511JBJ.

Cass. crim., 14 February 2012, LawLex202200001458JBJ.

CA Grenoble, 23 February 2009, LawLex201200001315JBJ.

Cass. crim., 18 September 2001, No 01-80.360, LawLex202200002669JBJ; 12 April 2005, No 04-83.101, LawLex202200002515JBJ.

CA Aix-en-Provence, 25 June 1997, LawLex200300002241JBJ.

Cass. crim., 20 July 2011, LawLex202200002247JBJ and LawLex202200001477JBJ.

Cass. crim., 6 June 1989, No 88-82.266, LawLex202200002517JBJ; 23 November 2004, No 04-81.601, LawLex202200001381JBJ.

Cass. crim., 2 October 1979, No 78-93.334, LawLex202200002518JBJ; 23 November 2004, No 04-81.601, LawLex202200001381JBJ.

Cass. crim. 23 January 1997, No 95-85.788, LawLex202200002832JBJ.

Cass. crim., 15 March 2011, LawLex202200002084JBJ; Judicial Court Colmar, 14 February 2002, LawLex200200000047JBJ; Cass. crim., 3 April 1997, LawLex200200000310JBJ; 18 October 1995, LawLex200300001015JBJ.

Cass. crim., 30 October 1996, No 94-83.650, LawLex202200002513JBJ.

White Collar Crime (en cours)

17. Content of the delegation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

17. Content of the delegation

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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