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 delegatee must be an employee of the undertaking managed by the delegator or of a company belonging to the same group and perform their duties under the responsibility of the latter. The existence of a relationship of subordination between the delegator and the delegatee is essential. The delegation must be granted to an agent endowed with the competence, authority, and necessary means to succ …

Conditions relating to the delegatee

The delegatee must be an employee of the undertaking managed by the delegator or of a company belonging to the same group and perform their duties under the responsibility of the latter. The existence of a relationship of subordination between the delegator and the delegatee is essential. The delegation must be granted to an agent endowed with the competence, authority, and necessary means to successfully carry out the tasks entrusted to them .

The competence of the delegatee is assessed with regard to their technical and legal knowledge in the area they are tasked with supervising. The delegatee must be able to assess and decide, based on their experience and qualifications, the measures to be taken to fulfill their duties. The courts verify the requirement of competence, depending on the complexity of the assigned task, using various criteria such as the delegatee's professional training , their classification within the undertaking, and their seniority in the relevant activity. The delegation of authority must be accompanied by education. The delegatee must know and master the regulations to be enforced and be fully aware of the responsibilities they accept. The national interprofessional agreement of 28 February 2020 on various guidelines for executives (ANI) also states that the employer must ensure that the delegatee possesses the necessary technical and legal knowledge to carry out their mission and is able to use it. They must thus know and understand the content of the regulations they are responsible for enforcing . If necessary, the employer must provide the necessary training so that the executive delegatee can assume the delegation of authority, ensuring that they have the means to perform the assigned task, whether material, human, financial , technical, or disciplinary.

The authority of the delegatee refers to the power to give orders and have them executed. They must be endowed with sufficient command power to obtain the obedience of employees under their orders and enforce the given instructions. They must have the ability to make necessary decisions to accomplish their mission and possess real decision-making power. They must notably be able to prohibit the execution of tasks that present risks to employees and take necessary measures to ensure compliance. Consequently, courts generally show little favor towards delegations granted to employees at lower levels of the hierarchy. The status of the delegatee as an intern is antithetical to the concept of delegation of authority, which requires having the necessary authority and autonomy to enforce regulations . Similarly, a monthly salary of 1,500 EUR is not compatible with the existence of a delegation of authority concerning the management of an establishment with five employees . Furthermore, an employee who does not have the power to commit sums exceeding 1,500 EUR does not have the necessary authority , just as an employee who was twenty-one years old at the time of signing the first delegation, less than a year after joining the company .

The delegation of authority must also be unequivocally accepted by the employee. No doubt should remain regarding their acceptance of the delegated tasks and the transfer of criminal liability .

The employer is encouraged, as far as possible, to offer help and assistance to their employee in the event of criminal proceedings brought against them, when the employee must defend themselves in a criminal dispute related to the exercise of their duties for the proper functioning of the company pursuant to a delegation of authority.

Cass. crim., 30 October 1996, 94-83.650, LawLex202200002513JBJ; CA Paris, 21 October 1999, LawLex200200000325JBJ; Cass. crim., 11 March 1993, LawLex200600001632JBJ; Judicial Court Rennes, 8 November 1990, LawLex200200000373JBJ.

Cass. crim., 14 February 1991, 90-80.122, LawLex202200001396JBJ.

Cass. crim., 12 June 2014, LawLex202200001471JBJ.

Cass. crim., 29 March 1995, LawLex200300003467JBJ; CA Douai, 21 October 1993, LawLex200300002472JBJ.

CA Paris, 26 November 2008, LawLex201200001281JBJ.

CA Aix-en-Provence, 19 September 2001, LawLex200400000555JBJ.

Cass. crim., 14 February 2012, LawLex202200001458JBJ.

Cass. crim., 8 December 2009, 09-82.183, LawLex202200002577JBJ.

Cass. crim., 27 June 2018, LawLex202200002264JBJ; Cass. crim., 23 May 2007, No 06-87.590, LawLex202200001394JBJ.

White Collar Crime (en cours)

16. Conditions relating to the delegatee

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

16. Conditions relating to the delegatee

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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