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)

As a rule, the employer is required to observe and ensure compliance with applicable laws and regulations. In the event of non-compliance with these rules under conditions that may constitute a criminal offense, the employer incurs criminal liability, if applicable, concurrently with that of the legal entity itself.
As an exception, the employer may be exempt from criminal liability if they can ju …

Exonerating effect of the delegation of authority

As a rule, the employer is required to observe and ensure compliance with applicable laws and regulations. In the event of non-compliance with these rules under conditions that may constitute a criminal offense, the employer incurs criminal liability, if applicable, concurrently with that of the legal entity itself.

As an exception, the employer may be exempt from criminal liability if they can justify having regularly delegated their powers to one of their subordinates . The Court of Cassation indeed considers that “while it is true that criminal liability rests on the head of the company, who is responsible for ensuring compliance with the legislation, it is different when it is established that they have delegated their powers to a subordinate, endowed with the necessary competence and authority” . The employer's criminal liability will not be engaged if they provide proof that they have delegated their powers to a person endowed with the competence, authority, and means necessary to fulfill their mission . Failing to meet these three cumulative conditions, the delegation of powers is not valid . The trial courts must thus examine the value and scope of the delegation of powers invoked . The defense based on the existence of a delegation of powers can be invoked up to the court of appeal, where the judges can sovereignly assess its value . However, the delegation defense cannot be invoked for the first time in the Court of Cassation .

The delegation of authority allows the delegator to transfer their responsibility to the delegatee in the performance of the tasks entrusted to them. It prevents the court from attributing the same breach to both the delegator and the delegatee . The exonerating effect produced in favor of the delegator, who may be either the manager or the delegatee in the case of sub-delegation, only applies to offenses committed in the performance of the delegated tasks . Therefore, delegations of authority that do not aim at compliance with current legislation on invoicing or commercial cooperation do not exonerate the company manager from their criminal liability in this area . The same applies to the delegation of authority that does not expressly aim at compliance with invoicing rules, unlike another delegation granted in the same store . Conversely, the delegation of authority in favor of a department head with ten years of seniority in this position, which specifically aims at compliance with regulations related to invoicing and commercial cooperation and resulted in a salary increase, validly exonerates the manager from their criminal liability .

The transfer of liability is not without limits. Indeed, the delegation of authority does not exempt the business leader from all liability. If the latter retains practical control and decision-making power in the area where the delegation of authority is granted, the delegation is ineffective. Thus, a business leader who has personally participated in the commission of the offense cannot exempt themselves from criminal liability by invoking a delegation of their powers . When the delegator interferes in the execution of the mission entrusted to the delegatee, their involvement de facto nullifies the decision-making autonomy that conditions the validity of any delegation of authority . A store manager incurs liability for complicity in the offense of deception, despite the existence of a delegation of authority, when they have given their subordinate instructions leading to the commission of the offense . A delegation of authority, emptied of its substance by the total control exercised by the manager over the work in question or interrupted due to the suspension of the employment contract of its holder, therefore has no exonerating effect . Similarly, a delegation of authority does not exempt the store manager from liability when they have committed a personal fault by not ensuring the presence of a responsible person authorized to replace the delegate during their vacation .

More generally, employers are always liable regarding measures that fall under their own managerial authority, without being able to enforce the argument of a delegation of authority .

If the mechanism of delegation of authority allows the delegator to be exempt from criminal liability if the conditions for the validity of the delegation are met , it has limited effects in terms of civil liability. Indeed, the employee holding a delegation of authority who acts without exceeding the limits of the mission entrusted to them by their employer does not incur civil liability: their employer remains solely responsible for the civil consequences of an offense committed within this framework . However, it is different when the employee commits a qualified fault within the meaning of Article 121-3 of the Criminal Code, even if the offense was committed in the exercise of their functions: in this case, they personally incur civil liability towards the third party who was the victim .

Furthermore, if the delegation of authority exempts the delegator within the scope covered by the delegation, it does not affect the criminal liability of the legal entity, which can be pursued cumulatively with that of the delegatee .

CA Limoges, 21 February 2007, LawLex200700000822JBJ; CA Rouen, 24 September 1998, LawLex200400001200JBJ; CA Aix-en-Provence, 24 March 1998, LawLex200300004242JBJ; CA Dijon, 13 February 1998, LawLex200200000295JBJ; CA Paris, 4 July 1994, LawLex200300001659JBJ; Cass. crim., 11 March 1993, LawLex200600001633JBJ.

Cass. crim., 7 December 1981, LawLex202200002943JBJ.

CA Caen, 29 March 2000, LawLex200200000137JBJ.

CA Rennes, 18 March 2004, LawLex200400002657JBJ.

Cass. crim., 20 May 2003, LawLex202200002852JBJ; 2 October 2007, LawLex201200001746JBJ; CA Bordeaux, 14 March 2006, LawLex200700000021JBJ; Cass. crim., 17 September 2002, LawLex200300001028JBJ; CA Bastia, 17 May 2000, LawLex200300004473JBJ; CA Paris, 24 June 1998, LawLex200400001088JBJ.

Cass. crim., 29 January 2002, LawLex200300003321JBJ; CA Lyon, 8 February 1995, LawLex200200000329JBJ.

Cass. crim., 26 February 2002, LawLex200300003319JBJ.

Cass. crim., 19 June 2012, LawLex202200002267JBJ.

Cass. crim., 26 June 2001, LawLex200300003261JBJ.

Cass. crim., 15 May 2007, LawLex202200002523JBJ.

Cass. crim., 9 November 1999, LawLex202200001484JBJ.

Civil Code, Art. 1384, para. 5. For an application, see Cass. crim., 23 January 2001, LawLex200400001160JBJ.

CA Rennes, 18 May 2000, LawLex200300002791JBJ; Cass. crim., 6 May 1996, LawLex200200000322JBJ.

Cass. crim., 28 March 2006, LawLex202300013331JBJ.

Criminal Code, Art. 121-2, para. 3.  For an application, See Cass. crim., 16 February 2010, LawLex202200001482JBJ.

Cass. crim., 6 January 2004, LawLex202300013330JBJ; CA Douai, 23 February 1995, LawLex200200000370JBJ; CA Paris, 4 July 1994, LawLex200300001659JBJ.

Cass. crim., 11 March 1993, LawLex200300003876JBJ and LawLex200200000321JBJ.

Cass. crim., 1 December 1992, LawLex202200002862JBJ.

Cass. crim., 8 June 2004, LawLex202200002522JBJ.

Judicial Court Toulon, 13 October 2009, LawLex201000001183JBJ.

Paris, 20 September 1999, LawLex200300003903JBJ; Cass. crim., 27 February 1995, LawLex200200000364JBJ.

Judicial Court of Draguignan, 23 February 2006, LawLex201000001123JBJ.

White Collar Crime (en cours)

19. Exonerating effect of the delegation of authority

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Les notions juridiques connexes

19. Exonerating effect of the delegation of authority

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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