The International Comparative Legal Guide To ... - Gibson Dunn

Copy and paste this link to your website, so they can see this document directly without any plugins.



Keywords

criminal, with, that, (Art., French, Crim., Code)., public, which, person, offense, Proc., such, years, offenses, imprisonment, been, Court, also, Criminal, maximum, have, under, sanctioned, specific, Legal, only, investigating, fines, Group

Transcript

The International Comparative Legal Guide to:
A practical cross-border insight into business crime
6th Edition
Business Crime 2016
ICLG
Published by Global Legal Group, in association with CDR, with contributions from:
Anagnostopoulos Criminal Law & Litigation
Baker & Partners
BCL Burton Copeland
BLOOMFIELD LAW PRACTICE
Clayton Utz
De Pedraza Abogados, S.L.P.
Debevoise & Plimpton LLP
Diaz, Reus & Targ LLP
ELIG, Attorneys-at-Law
Gibson, Dunn & Crutcher LLP
Gürlich & Co.
Haldanes
Haxhia & Hajdari Attorneys at Law
Homburger
Ivanyan and Partners Law Firm
Kachwaha and Partners
Lampert & Partner Attorneys at Law Ltd.
Łaszczuk & Partners
Linklaters LLP
Maples and Calder
Matheson
MJM Limited
Nishimura & Asahi
REQUENA ABOGADOS, S.C.
Rogério Alves & Associados, Sociedade de
Advogados, RL
Simmons & Simmons LLP
Skadden, Arps, Slate, Meagher & Flom LLP
Stetter Rechtsanwälte
Studio Legale Pisano
Williams & Connolly LLP
wkklaw attorneys at law
Zamfirescu Racoţi & Partners
Attorneys at Law
Zavadetskyi Advocates Bureau
WWW.ICLG.CO.UK
Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.
The International Comparative Legal Guide to: Business Crime 2016
Contributing Editors
Gary DiBianco & Ryan
Junck, Skadden, Arps, Slate,
Meagher & Flom LLP
Head of Business
Development
Dror Levy
Sales Director
Florjan Osmani
Account Directors
Oliver Smith, Rory Smith
Senior Account Manager
Maria Lopez
Sales Support Manager
Toni Hayward
Sub Editor
Amy Hirst
Senior Editor
Suzie Levy
Group Consulting Editor
Alan Falach
Group Publisher
Richard Firth
Published by
Global Legal Group Ltd.
59 Tanner Street
London SE1 3PL, UK
Tel: +44 20 7367 0720
Fax: +44 20 7407 5255
Email: info@glgroup.co.uk
URL: www.glgroup.co.uk
GLG Cover Design
F&F Studio Design
GLG Cover Image Source
iStockphoto
Printed by
Ashford Colour Press Ltd.
October 2015
Copyright © 2015
Global Legal Group Ltd.
All rights reserved
No photocopying
ISBN 978-1-910083-66-6
ISSN 2043-9199
Strategic Partners
Country Question and Answer Chapters:
8 Albania Haxhia & Hajdari Attorneys at Law: Isuf Haxhiu & Dritan Jahaj 38
9 Australia Clayton Utz: Tobin Meagher & Greg Williams 48
10 Austria wkklaw attorneys at law: Norbert Wess & Bernhard Kispert 56
11 Belgium Linklaters LLP: Stefaan Loosveld & Gert-Jan Hendrix 66
12 Bermuda MJM Limited: Jennifer Haworth 73
13 British Virgin Islands Maples and Calder: Arabella di Iorio & David Welford 80
14 Cayman Islands Maples and Calder: Martin Livingston & Adam Huckle 87
15 Colombia Diaz, Reus & Targ LLP: Michael Diaz Jr. & Marcela C. Blanco 96
16 Czech Republic Gürlich & Co.: Richard Gürlich & Katerina Benasova 104
17 England & Wales BCL Burton Copeland: Richard Sallybanks & Shaul Brazil 111
18 France Gibson, Dunn & Crutcher LLP: Nicolas Autet & Salomé Lemasson 119
19 Germany Stetter Rechtsanwälte: Dr. Sabine Stetter & Stephanie Kamp 130
20 Greece Anagnostopoulos Criminal Law & Litigation: Ilias G. Anagnostopoulos
& Jerina (Gerasimoula) Zapanti 139
21 Hong Kong Haldanes: Felix Ng & Emily Cheung 148
22 India Kachwaha and Partners: Ashok Sagar & Sumeet Kachwaha 156
23 Ireland Matheson: Bríd Munnelly & Carina Lawlor 166
24 Italy Studio Legale Pisano: Roberto Pisano 176
25 Japan Nishimura & Asahi: Yoshinori Ono & Norimitsu Yamamoto 186
26 Jersey Baker & Partners: Stephen Baker & Cyril Whelan 198
27 Liechtenstein Lampert & Partner Attorneys at Law Ltd.: Siegbert Lampert
& Martina Tschanz 206
28 Mexico REQUENA ABOGADOS, S.C.: Carlos Requena &
Luis Fernando Hernandez 213
29 Nigeria BLOOMFIELD LAW PRACTICE: Adekunle Obebe & Dayo Adu 220
30 Poland Łaszczuk & Partners: Jan Rysiński 227
31 Portugal Rogério Alves & Associados, Sociedade de Advogados, RL:
Rogério Alves 234
32 Romania Zamfirescu Racoţi & Partners Attorneys at Law:
Cozmin-Antoniu Obancia 243
General Chapters:
1 No Place to Hide: the New Normal in Cross-Border Tax Enforcement – Ryan Junck & Pamela
Lawrence Endreny, Skadden, Arps, Slate, Meagher & Flom LLP 1
2 When Should Organisations be Held Criminally Liable? – Tom McNeill & Guy Bastable,
BCL Burton Copeland 6
3 The Developing Partnership Between Financial Institutions and Law Enforcement:
a UK Perspective – Stephen Gentle, Simmons & Simmons LLP 11
4 Maintaining Privilege in Cross Border Investigations – A US / UK Comparison – Sean Hecker
& Karolos Seeger, Debevoise & Plimpton LLP 15
5 Coerced Corporate Social Responsibility and the FCPA – Joel M. Cohen & Daniel P. Harris,
Gibson, Dunn & Crutcher LLP 23
6 Tactical and Ethical Considerations in Multinational Investigations – Tobin J. Romero &
Joseph M. Terry, Williams & Connolly LLP 30
7 Fighting Corruption in International Transactions – Michael Diaz Jr. & Marcela C. Blanco,
Diaz, Reus & Targ LLP 35
EDITORIAL
Welcome to the sixth edition of The International Comparative Legal
Guide to: Business Crime.
This guide provides the international practitioner and in-house counsel
with a comprehensive worldwide legal analysis of the laws and regulations
of business crime.
It is divided into two main sections:
Seven general chapters. These are designed to provide readers with
a comprehensive overview of key issues affecting business crime,
particularly from the perspective of a multi-jurisdictional transaction.
Country question and answer chapters. These provide a broad overview of
common issues in business crime laws and regulations in 31 jurisdictions.
All chapters are written by leading business crime lawyers and industry
specialists and we are extremely grateful for their excellent contributions.
Special thanks are reserved for the contributing editors, Gary DiBianco
and Ryan Junck of Skadden, Arps, Slate, Meagher & Flom LLP, for their
invaluable assistance.
Global Legal Group hopes that you find this guide practical and interesting.
The International Comparative Legal Guide series is also available
online at www.iclg.co.uk.
Alan Falach LL.M.
Group Consulting Editor
Global Legal Group
Alan.Falach@glgroup.co.uk
33 Russia Ivanyan and Partners: Vasily Torkanovskiy 250
34 Spain De Pedraza Abogados, S.L.P.: Mar de Pedraza & Cristina de Andrés 261
35 Switzerland Homburger: Flavio Romerio & Roman Richers 276
36 Turkey ELIG, Attorneys-at-Law: Gönenç Gürkaynak & Ç. Olgu Kama 286
37 Ukraine Zavadetskyi Advocates Bureau: Oleksandr Zavadetskyi &
Veronika Mordasova 294
38 USA Skadden, Arps, Slate, Meagher & Flom LLP:
Gary DiBianco & Gary A. Rubin 301
The International Comparative Legal Guide to: Business Crime 2016
Country Question and Answer Chapters:
ICLG TO: BUSINESS CRIME 2016 119WWW.ICLG.CO.UK
© Published and reproduced with kind permission by Global Legal Group Ltd, London
1 General Criminal Law Enforcement
1.1 What authorities can prosecute business crimes,
and are there different enforcement authorities at the
national and regional levels?
In France, business crimes are mainly prosecuted by the public
prosecutor’s office (ministère public), which notably supervises the
judicial police’s investigations, while distinct criminal courts with
appointed magistrates (so-called magistrats du siège) are tasked
with ruling upon business crimes.
The public prosecutor’s office is a judicial authority that exercises
public prosecution (action publique) and ensures criminal law is
enforced. More generally, it represents the “interests of the French
society” in criminal matters. Indeed, under French criminal law,
the public prosecutor’s office acts and prosecutes criminal offenses
on behalf of the French “society”. It plays the role of the accusing
party while the victim of the offense may only join the proceedings
(see below, in particular question 8.4). Consequently, the public
prosecutor’s office is tasked with leading the prosecution only and
does not take part in the final judicial decision ruling on the guilt of
a suspected person.
Appointed locally, the public prosecutor is hierarchically placed
under the authority of the Ministry of Justice (Ministère de la
Justice) and may receive written instructions from the latter with
regard to the application of criminal law throughout the whole
area of the Court of Appeals’ territorial jurisdiction. The public
prosecutor’s office comprises the general prosecutor (procureur
général) attached to the Court of Appeals and the deputy public
prosecutors (procureurs de la République), who are appointed in
all Courts of First Instance (Tribunaux de grande instance) and
are placed under the authority of the general prosecutor. Statute
n°2013-1117 of December 6, 2013 created the new Financial Public
Prosecutor (procureur de la République financier), an independent
prosecutor with national jurisdiction over complex financial
crimes, corruption practices, influence peddling, as well as offences
related to stock markets, etc. The Financial Public Prosecutor has
(i) exclusive nationwide jurisdiction for financial crimes, and (ii)
concurrent jurisdiction in corruption cases.
The public prosecutor is responsible for supervising police officers’
investigations (officiers de police judiciaire) over criminal matters.
Depending on the outcome of the criminal investigation, the public
prosecutor decides whether the offense should be prosecuted or not.
This option is referred to as “prosecution opportunity” (opportunité
des poursuites), which depends on the public prosecutor’s sole
discretion. If the public prosecutor considers that the offense should
be prosecuted, it is responsible for initiating the matter before the
competent criminal court for trial, which depends on the geographic
area and the nature of the offense (see question 2.1). Under French
law, professional magistrates have control over public prosecution
(action publique) (Art. 1 of the French Code of Criminal Procedure
(“Crim. Proc. Code”)).
Notwithstanding the above, French criminal procedure relies on
efficient check and balances to ensure that criminal offenses are
appropriately prosecuted. For instance, if the public prosecutor
decides not to prosecute a criminal offence (classement sans suite),
victims may appoint an investigating judge (juge d’instruction)
directly by filing a specific complaint (so-called plainte avec
constitution de partie civile), thus overriding the public prosecutor’s
prerogative of “prosecution opportunity” (Art. 2 Crim. Proc. Code).
Victims can also initiate criminal proceedings by introducing a
direct committal procedure (citation directe, Art. 390 Crim. Proc.
Code) against the defendant, directly before the court.
Although the public prosecutor is tasked with investigating
criminal offences, French criminal procedure requires that a distinct
authority, i.e., an investigating judge, be mandatorily appointed in
the case of crimes (crimes). The investigating judge supervises the
judicial police and is required to investigate both for and against the
suspected person. Investigating judges may also be appointed in
connection with complex offences (délits) at the public prosecutor’s
sole discretion (in practice, investigating judges are appointed in less
than 5% of criminal investigations). The investigating judge is not
part of the public prosecutor’s office (parquet) but is an appointed
magistrate (magistrat du siège) who is autonomous and independent
from the government (contrary to the public prosecutor’s office, the
investigating judge is not placed under the authority of the Ministry
of Justice hence he/she does not receive any directive on how to
conduct his/her investigations).
1.2 If there are more than one set of enforcement
agencies, please describe how decisions on which
body will investigate and prosecute a matter are
made.
Criminal courts (parquet and magistrats du siege) are the only
entities tasked with prosecuting criminal offences. However,
certain other magistrates that do not investigate on criminal offenses
play a significant role in the conduct of criminal investigations. This
is notably the case of the judge of liberties and detention (juge des
libertés et de la détention), which is the only competent magistrate
to decide whether a defendant may be incarcerated (detention
provisoire) in the course of a criminal investigation, before any trial
has taken place.
Gibson, Dunn & Crutcher LLP
Nicolas Autet
Salomé Lemasson
France
Chapter 18
WWW.ICLG.CO.UK120 ICLG TO: BUSINESS CRIME 2016
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce Gibson, Dunn & Crutcher LLP France
1.3 Is there any civil or administrative enforcement
against business crimes? If so, what agencies enforce
the laws civilly and which crimes do they combat?
Certain financial actors are regulated by one or both the French
Financial Markets Authority (Autorité des Marchés Financiers
or “AMF”) or by the Prudential Supervisory Authority (Autorité
de Contrôle Prudentiel et de Résolution or “ACPR”). These two
administrative authorities have the effective power to impose
administrative sanctions on the entities they regulate.
The AMF is entrusted with the duties and powers to regulate French
financial markets’ participants and products (Art. L. 621-1 of the
French Monetary and Financial Code (“CMF”), which notably
include listed companies (sociétés côtées), financial intermediaries
(intermédiaires financiers) providing financial investment
services (e.g., portfolio management companies (sociétés de
gestion de portefeuille), financial investment advisers (conseillers
en investissements financiers)), collective investment schemes
(produits d’épargne collective). It also ensures that investors receive
material information, and provides a mediation service to assist them
in dispute resolution. In fulfilling its regulator obligations, the AMF
is notably tasked with financial crimes’ administrative prosecution,
which may result in imposing significant fines sanctioning the
breach of AMF regulation (Règlement général de l’AMF), including
market abuse breaches (i.e., insider trading, market manipulation
or false information) and failure to meet professional obligations.
Sanctions imposed by the AMF are not criminal sanctions but of
an administrative nature. Traditionally, France counted among the
market abuse double-prosecution system enforcing countries as
such offences could be subject to both criminal and administrative
prosecution and sanction. However, on March 18, 2015, the French
Conseil Constitutionnel (Constitutional Supreme Court) ruled that
the same person could no longer be prosecuted and condemned twice
for the same facts by both the AMF’s Enforcement Committee and a
French criminal court. Although this decision specifically concerns
insider trading cases, it should also cover market manipulation and
false information spreading offences. The French legislator has
been given an interim period expiring on September 1, 2016 to draft
and adopt new rules which will likely profoundly reform the French
market abuse regime and sanctions.
The ACPR is charged with preserving the stability of the financial
system and protecting the customers, insurance policyholders,
members and beneficiaries of the entities that it supervises. It
oversees financial and banking institutions to control that solvency
requirements imposed by EU regulations are complied with
(solvency ratios ensure that financial institutions’ financial health
and liquidity are sufficient to meet their financial commitments and
face risks associated with their activities), as well as rules applicable
to clientele protection (Art. L. 612-1 CMF). The ACPR also controls
and ensures that regulations applicable to insurance companies and
intermediaries are complied with. The ACPR may impose sanctions
on the entities placed under its supervision, for which certain also
constitute criminal offences.
With regard to the fight against money-laundering and terrorism
financing, a specific service called Tracfin, placed under the umbrella
of the French Ministry of Finance and Public Accounts (Ministère
des finances et des comptes publics), has been created to collect
suspicious activity reports (SARs) (déclarations de soupçon) which
are mandatorily issued by certain professionals, including notably
financial institutions, insurance companies, investment companies,
auditors (experts-comptables), lawyers, etc. (Art. L. 561-2 CMF).
These SARs concern amounts derived from financial transactions
or operations that are suspected (i) to constitute a criminal offence
sanctioned by at least one year of imprisonment, (ii) to derive from
tax fraud, or (iii) to participate in the financing of terrorism (Art.
L. 561-15 CMF). Tracfin’s authority is limited to the collection of
information; Tracfin has no jurisdiction to investigate or rule on the
criminal offences of money-laundering or terrorism financing, yet
the collected information may be transmitted to judicial authorities,
tax authorities and to similar European or foreign entities. Note
that Tracfin may not receive SARs issued by individuals that are not
entrusted with the obligation to declare provided by law.
2 Organisation of the Courts
2.1 How are the criminal courts in France structured?
Are there specialised criminal courts for particular
crimes?
In France, criminal courts are organised hierarchically and
geographically. Competent jurisdictions are determined depending
on the geographic area where the offence was perpetrated
(compétence territoriale), as well as based on the nature of the
offense (compétence d’attribution). In certain cases, jurisdiction
of criminal courts may be extended (prorogation de competence),
which is notably the case for organised crime (Art. 706-75 of the
French Criminal Code (“Crim. Code”)).
Under French Criminal law (Art. 111-1 Crim. Code), criminal
offences are classified depending on their seriousness between crimes
(crimes), offences (délits), and misdemeanours (contraventions),
these latter being defined as criminal offenses that are punished by
a fine inferior to EUR 3,000 and are categorised into five different
classes (Art. 131-13 Crim. Proc. Code).
■ The Court of first instance (Juridiction de proximité) has
jurisdiction over the first four classes of misdemeanours (Art.
521 Crim. Proc. Code), until January 1st 2017.
■ The Police Court (Tribunal de police) has jurisdiction over
fifth class’ misdemeanors (contraventions de 5ème classe)
(Art. 521 Crim. Proc. Code). As of 2017, it will have
jurisdiction over all classes of misdemeanours.
■ The Criminal Court of First Instance (Tribunal correctionnel)
has jurisdiction over offences (délits), which are defined
by law as any criminal offence sanctioned by either
imprisonment (between two months and 10 years or 20 years
in case of recidivism) or a criminal fine of at least EUR 3,750
(Art. 381 Crim. Proc. Code).
■ The Assize Court (Cour d’assises) has jurisdiction over
crimes (crimes) (Art. 231 Crim. Proc. Code), which are
sanctioned by a criminal fine of at least EUR 3,750 and
between 15 years of imprisonment to life imprisonment.
These courts exist at the regional level. Both Police Courts and
Criminal Courts of First Instance are permanent jurisdictions. Due
to its use of a jury, the Assize Court is implemented whenever
required and at least once a quarter.
In addition, certain specific matters are only tried before specialised
jurisdictions:
■ Juvenile courts (Ordinance n°45-174 of February 2, 1945),
which include the Magistrate for Children (juge des enfants),
the Tribunal for Children (Tribunal pour enfants), the Juvenile
Correctional Court (Tribunal correctionnel pour mineurs), and
the Juvenile Assize Court (Cour d’assises des mineurs).
■ Military courts, which are governed by the Code of Military
Justice (Code de justice militaire).
■ Political courts, including the High Court (Haute cour),
which has jurisdiction over the President of the Republic in
case of breach manifestly incompatible with the presidential
ICLG TO: BUSINESS CRIME 2016 121WWW.ICLG.CO.UK
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce false or deceitful information used to calculate an index or
intended to distort the market by a maximum of two years
of imprisonment and EUR 1,500,000 in criminal fines;
and
■ illegal speculation (délit de spéculation illicite): a
maximum of two years of imprisonment and EUR 30,000
in criminal fines (Art. L. 443-2 Com. Code).
o Accounting fraud
Under French law, presenting inaccurate financial statements
(délit de présentation de comptes annuels infidèles) is a
criminal offense sanctioned by a maximum of five years of
imprisonment and EUR 375,000 in criminal fines (Art. L.
242-6 Com. Code).
French law also sanctions bankruptcy, which is notably
defined as the fact for a person listed in Article L. 6541 Com. Code to dissimulate all or part of the company’s
assets, to fraudulently increase the company’s liabilities, to
keep fictitious financial statements or destroy accounting
documents (etc.) in order to avoid or postpone the opening of
judicial receivership or liquidation procedures (Art. L. 654-2
Com. Code). Bankruptcy is sanctioned by a maximum of
five years of imprisonment and EUR 75,000 in criminal fines
(Art. L. 654-3 Com. Code).
o Insider trading
According to Article L. 465-1 CMF, the fact for company
directors and persons having access to privileged information
due to their positions within a company to realise, or try to
realise via a third party, one or several market transactions
before this information is known to the public is sanctioned
by a maximum of two years of imprisonment and EUR
1,500,000 in criminal fine (which amount may be increased
up to 10 times the amount of profit gained as a result of
the criminal offense, being specified that the criminal
fine may not be lower than the said profit). Consequently,
credit institutions, investment companies and members of
regulated markets are required to immediately declare to the
AMF (see question 1.3) any suspicious transaction which
could potentially be qualified as insider trading or market
manipulation (Art. L. 621-17-2 CMF). Furthermore, any
issuer whose securities are traded on regulated markets
are also required to disclosed to the AMF a list of persons
who have access to privileged information (Art. L. 621-184 CMF). Additional criminal offences, such as the ones
listed under “fraud and misrepresentation in connection
with sales of securities” may also be charged. The offence
of recel de délit d’initié (i.e., the use of inside information
by another person aware of its fraudulent nature) has also
been recognised by French Criminal Courts, regardless of the
intangible aspect of inside information.
Furthermore, Article L. 465-1 CMF also sanctions the
wrongful communication of inside information outside
of the normal course of a person’s profession (délit de
communication d’information privilégiée). In such a case, the
inside dealer risks a maximum of one year of imprisonment
and EUR 150,000 in criminal fines (the amount of the fine
may be increased up to 10 times the amount of profit gained
as a result of the criminal offence and that the criminal fines
may not be lower than the said profit).
o Embezzlement
The misuse of corporate assets (abus de biens sociaux) is
sanctioned under French law by Articles L. 241-3 and L. 2426 Com. Code. This criminal offense relates to the broader
offense of receipt of stolen goods (recel). In practice, the
significant amount of decisions relating to the misuse of
corporate assets is explained by the fact that the burden
of proof is lower for these offenses than for offenses of
corruption, hence the qualification of both misuse of corporate
assets and recel may be used to circumvent difficulties to
prove corruption or avoid statute of limitations problems.
mandate (Art. 68 of the French Constitution) and the Court
of Justice of the Republic (Cour de justice de la République),
which has jurisdiction to rule on criminal offences perpetrated
by ministers in the course of their mandate.
2.2 Is there a right to a jury in business-crime trials?
In France, a jury is only implemented for crimes (crimes), for
which the Assize Court has exclusive jurisdiction (e.g., murder,
manslaughter, rape, etc.). Business-crime trials mostly concern
offenses (délits) for which the Criminal Court of First Instance
(Tribunal correctionnel) has jurisdiction.
For certain specific major offences (e.g. terrorism or drug
trafficking), a jury is not selected to seat with the Assize Court,
which is thus only composed of professional magistrates.
3 Particular Statutes and Crimes
3.1 Please describe any statutes that are commonly used
in France to prosecute business crimes, including the
elements of the crimes and the requisite mental state
of the accused:
Alongside specific statutes that were created by the French Monetary
and Financial Code or the French Commercial Code (“Com. Code”),
French criminal law also uses traditional classifications to sanction
business criminal offences provided for by the French Criminal
Code, including inter alia:
■ Theft (vol), defined as the fraudulent subtraction of someone
else’s property, is sanctioned by a maximum of three years of
imprisonment and EUR 45,000 in criminal fines (Art. 311-3
et seq. Crim. Code).
■ Receipt of stolen goods (recel), defined as concealing,
keeping or transmitting a thing or serving as an intermediary
in order to transmit such thing knowing it has been obtained
by criminal offense, is sanctioned by a maximum of five
years of imprisonment and EUR 375,000 in criminal fines
(Art. 321-1 et seq. Crim. Code).
■ Extortion (extorsion), i.e., obtaining violently or under threat
a commitment or renunciation, the disclosure of a secret, or
the release of funds, value or any good, which is sanctioned
by a maximum of seven years of imprisonment and EUR
100,000 in criminal fines (Art. 312-1 et seq. Crim. Code).
■ Swindling (escroquerie), defined as the deceit of a person
by using a fake identity or quality, by abusing an accurate
quality or by fraudulent action (“manoeuvre”) to incite such
person to release funds, services or any good of value against
its own interest or damaging to a third party, is sanctioned by
a maximum of five years of imprisonment and EUR 375,000
in criminal fines (Art. 313-1 et seq. Crim. Code).
o Fraud and misrepresentation in connection with sales of
securities
Several criminal offenses may be constituted in the context
of fraud and misrepresentation in connection with sales of
securities. French criminal law notably sanctions:
■ diffusion of false information (délit de diffusion de
fausses informations): a maximum of two years of
imprisonment and EUR 1,500,000 in criminal fines
(Article L. 465-2 CMF);
■ market manipulation (délit de manipulation de cours)
is sanctioned by the same article as the diffusion of false
information;
■ index manipulation (délit de manipulation d’indices):
Article L. 465-2-1 Com. Code sanctions the diffusion of
FranceGibson, Dunn & Crutcher LLP
WWW.ICLG.CO.UK122 ICLG TO: BUSINESS CRIME 2016
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce Gibson, Dunn & Crutcher LLP France
Breach of trust (abus de confiance) may also be charged
in embezzlement circumstances, which is sanctioned by a
maximum of three years of imprisonment and EUR 375,000
in criminal fine (Art. 314-1 Crim. Code). However, any time
a specific criminal offense is constituted, it overrides the
general criminal offense of breach of trust.
o Bribery of government officials
French criminal law distinguishes between active and passive
corruption:
■ Active corruption relates to the action of a third party
(the briber) which obtains or seeks to obtain that another
person, entrusted with a public position, accomplishes or
refrains from accomplishing a particular act by offering
such person gifts or promises (Art. 433-1 Crim. Code).
■ Passive corruption relates the actions of a person entrusted
with a public position who uses such position to solicit or
accept gifts, promises or benefits in order to accomplish
or refrain from accomplishing a particular act relating to
or eased by such position (Art. 432-11 Crim. Code).
The French Criminal Code also includes specific provisions
for offences of corruption involving persons entrusted with
public functions or mission, elected representatives entrusted
with a European mandate, foreign public agents or members
of an international public organisation (Art. 435-1 et seq.
Crim. Code), as well as corruption involving persons seating
in court (magistrate, judge, arbitrator, jury, etc. – Art. 434-9
Crim. Code).
Corruption is also prosecuted via offenses relating to
influence peddling (trafic d’influence), which can be both
active and passive (Art. 433-2 Crim. Code).
Sanctions have been increased recently against perpetrators
of corruption:
■ individuals face EUR 1 million or twice the proceeds of
the offense in criminal fines and a maximum of 10 years
of imprisonment;
■ legal entities face EUR 5 million or twice the proceeds of
the offense in criminal fines; and
■ complementary punishment may also be imposed, such as
loss of civil or family rights, prohibition to hold a public
mandate or to perform similar business activity as the one
during which the offense was perpetrated, prohibition
to hold commercial or industrial functions or to operate,
manage or control a company, seizure of goods illegally
obtained as a result of the offense (Art. 433-17 Crim. Code).
In practice, the prosecution of corporations for bribing
foreign public officials is relatively new. Prosecutions have
targeted individuals, resulting in a high rate of acquittals.
To date, only a handful of individuals have been convicted,
for relatively minor misconduct not related to corporate
activities.
o Corruption of individuals
With regard to individuals, active and passive corruption is
sanctioned by Article 445-1 Crim. Code:
■ individuals face EUR 500,000 or twice the proceeds of the
offense in criminal fine and a maximum of five years of
imprisonment; and
■ legal entities face EUR 2.5 million or twice the proceeds
of the offense in criminal fines.
o Criminal anti-competition
The French Commercial Code contains several criminal
offenses that pertain to anti-competitive practices, including
notably:
■ Abuse of dominance and cartel offences (ententes et
abus de domination), defined as fraudulently taking part
in committing a cartel offence or an abuse of dominance
(abus de position dominante), is sanctioned by a
maximum of four years of imprisonment and EUR 75,000
in criminal fines (Art. L.420-6 Com. Code).
■ Sale at a loss (revente à perte), i.e., the sale at a lower
price than the purchase price, is sanctioned by EUR
75,000 in criminal fines (Art. L.442-2 Com. Code).
■ Illegal action on prices (action illicite sur les prix),
i.e., the artificial modification of the prices of goods or
services, is sanctioned by a maximum of two years of
imprisonment and EUR 30,000 in criminal fines (Art.
L.443-2 Com. Code).
o Tax crimes
Fraudulently avoiding to pay taxes (délit général de
fraude fiscale) is sanctioned by a maximum of five years
of imprisonment and EUR 500,000 in criminal fines (Art.
1741 et seq. of the French General Tax Code), increased
to a maximum of seven years of imprisonment and EUR
2,000,000 in case of organised criminal offence (bande
organisée).
The French tax administration may also set aside acts that
constitute an abuse of law (abus de droit) or fictitious acts
designed only to elude or lower tax charges (Art. L. 64 of the
Tax Procedure Book).
o Government-contracting fraud
It is prohibited for a person holding public office or entrusted
with a public mandate to procure undue benefit to a third
party in breach of legal and regulatory provisions governing
public procurement (Art. 432-14 Crim. Code). Such a
criminal offense is sanctioned by a maximum of two years of
imprisonment and EUR 200,000 in criminal fines (which can
be increased to double the profit generated by the offence).
Several other offenses may be constituted in connection
with government-contracting fraud, such as corruption and
forgery.
o Environmental crimes
The environment has been enshrined as one of the nation’s
fundamental interests (Art. 401-1 Crim. Code), and French
criminal law also created the notion of environmental
terrorism (Article 421-2 Crim. Code). Most environmental
crimes are enumerated in the French Environmental Code.
o Campaign-finance/election law
The French Electoral Code contains criminal provisions
governing the origin of funds collected in view of political
campaigns. For instance, Article L. 113-1 of the Code
sanctions by a maximum of one year of imprisonment and
EUR 3,750 in criminal fines the breach of specific provisions
governing the origin of funds of political campaigns.
o Any other crime of particular interest in France
With regard to business criminal offenses, the offense of
counterfeiting (délit de contrefaçon) is defined as the edition
of any written material, music composition, drawing, painting
or any other production either printed or engraved in breach
of applicable laws protecting intellectual and industrial
property. Counterfeiting is sanctioned by a maximum of
three years of imprisonment and EUR 300,000 in criminal
fines (Art. L. 353-2 of the French Intellectual Property Code).
o Market manipulation in connection with the sale of
derivatives
See above “fraud and misrepresentation in connection with
the sales of securities” and “insider trading”.
o Anti-money laundering
Money-laundering is defined by French criminal law as the
facilitation, by any means whatsoever, to wrongfully justify
the illegal origin of funds or revenues of the perpetrator of a
crime. Participating in the placement, deceit or conversion
of the direct or indirect outcome of a crime or offense also
ICLG TO: BUSINESS CRIME 2016 123WWW.ICLG.CO.UK
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce qualifies as money-laundering. Both offenses are sanctioned
by a maximum of five years of imprisonment and EUR
375,000 (Art. 324-1 Crim. Code).
3.2 Is there liability for inchoate crimes in France? Can
a person be liable for attempting to commit a crime,
whether or not the attempted crime is completed?
According to Article 121-5 Crim. Code, the attempt to commit a
crime is constituted as soon its execution has only been stopped or
failed due to circumstances exterior to the will of the actor of such
attempt.
Under French law, the attempt to commit a crime is always
punishable, even if no specific disposition provides for it. However,
the attempt to commit an offense (délit) is only punishable if it is
expressly provided for by the law. This is the case for theft (vol)
(Art. 311-13 Crim. Code). Note that the attempt to commit a
misdemeanour is never punishable.
4 Corporate Criminal Liability
4.1 Is there entity liability for criminal offences? If so,
under what circumstances will an employee’s conduct
be imputed to the entity?
Except for the French State, legal entities (personnes morales)
are liable for criminal offenses committed on their behalf by their
corporate bodies or representatives (Art. 121-2 Crim. Code).
Specific procedural rules are applicable to the prosecution of
offenses committed by corporations (Art. 706-41 et seq. Crim. Proc.
Code). Criminal fines incurred by corporations are in principle five
times higher than the ones provided for individuals (Art. 131-38
Crim. Code).
Criminal corporate liability is established as long as the criminal
offense has been committed: (i) by a corporate body or a company
representative (hence if the concerned offense is intentional,
corporate criminal liability requires to demonstrate that the
company representative consciously committed the offence); and
(ii) on behalf of the corporation, i.e., the offence inures to the benefit
of the corporation.
Recently, the French company Safran was acquitted in January 2015
after successfully appealing its 2012 French conviction for allegedly
paying bribes to Nigerian officials between 2000 and 2003 in order
to obtain a EUR 170 million contract to produce national identity
cards. On appeal, in line with the public prosecutor’s argument that
corruption charges against the legal entity could not be sustained
particularly given that high-ranking officials within the company
had been acquitted of crimes based on the same conduct, the Paris
Court of Appeals considered that, in the absence of any conviction
of individuals for corruption practices, Safran, as a legal entity,
could thus not be held liable for the alleged bribery scheme (Paris
Court of Appeals, Jan. 7, 2015, n°12/08695).
4.2 Is there personal liability for managers, officers, and
directors if the entity becomes liable for a crime?
Corporate criminal liability does not exclude criminal liability of
individuals who committed or participated in the commission of the
offense. French law recognises personal criminal liability of directors
(dirigeants), whether such director has been legally appointed
(dirigeant de droit) or is, in fact, the director of the corporation
(dirigeant de fait). In addition to criminal sentences, corporate
directors face supplementary punishments (peines complémentaires),
including the prohibition to manage, run, or control a corporation (Art.
L. 249-1 Com. Code). In addition, directors are also held liable for all
criminal offenses committed with regard to employment, environment,
or consumer law, etc. Directors are also liable for tax fraud (Art. 1741
of the French General Tax Code).
However, directors’ criminal liability may be set aside if it is
established that the director did not participate in the offense and
that it had delegated its authority to another person.
4.3 Where there is entity liability and personal liability, do
the authorities have a policy or preference as to when
to pursue an entity, when to pursue an individual, or
both?
There is no official policy (and it is difficult to consider that there is
a preference too) with regard to the prosecution of corporations as
opposed to individuals. If both are criminally liable, French judicial
authorities prosecute both entities and individuals.
5 Statutes of Limitations
5.1 How are enforcement-limitations periods calculated,
and when does a limitations period begin running?
Generally speaking, statutes of limitations depend on the nature of
the criminal offenses:
■ The statute of limitation applicable to crimes (crimes) is of
10 years (Art. 7 Crim. Proc. Code) and starts running on the
date on which the criminal offense is committed (except for
concealed offenses (see below) and for continuing offenses,
in which case the limitations period starts running when the
offense has ceased).
■ The statute of limitation applicable to offences (délits) is of
three years (Art. 8 Crim. Proc. Code), and is calculated as
explained above.
■ The statute of limitation applicable to misdemeanors
(contraventions) is of one year (Art. 9 Crim. Proc. Code), and
is calculated as explained above.
Specific rules apply to the calculation of limitation periods for
certain criminal offenses or with regard to criminal offenses
committed against vulnerable individuals or children: e.g., crimes
against humanity have no applicable statute of limitations (Art. 2135 Crim. Code), while the statute of limitation applicable to crimes
or offenses against children is longer (20 years for crimes; 10 years
for offenses) and only starts running once the child reaches the age
of majority (i.e., 18 years old).
Specific calculation principles apply to concealed criminal offenses
(infractions dissimulées), for which the limitations period only
starts running once the offense has been (or could have been)
discovered. This is the case for the criminal offense of misuse of
corporate assets (abus de biens sociaux): although this offense is not
a hidden one per se, French criminal courts tend to apply distinct
starting dates for the statute of limitation. If the misuse of corporate
assets could have been discovered through the company’s financial
statements and accounting documents, the three-year limitations
period applicable to offenses (délits) starts running as of the date
on which such misuse has been committed. However, if the misuse
of corporate assets has been concealed, then French criminal courts
tend to consider that the limitation period only starts running on
the date on which the criminal offense has (or could have) been
discovered.
Gibson, Dunn & Crutcher LLP France
WWW.ICLG.CO.UK124 ICLG TO: BUSINESS CRIME 2016
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce Gibson, Dunn & Crutcher LLP France
of assisted witnesses (témoins assistés), notably if they have been
namely mentioned in the initial or additional indictment (Art. 1131 Crim. Proc. Code) or under the status of indicted persons (mis
en examen – Art. 80-1 Crim. Proc. Code). When placed under
these statuses, they benefit from additional protection and rights to
organise their defence (notably, the right to counsel).
6.2 Do the criminal authorities have formal and/or
informal mechanisms for cooperating with foreign
prosecutors? Do they cooperate with foreign
prosecutors?
The following European legal assistance treaties apply in France:
■ The Convention on Mutual Assistance in Criminal Matters
dated April 20, 1959 and its protocol dated March 17, 1978.
■ The European Convention on Judicial Assistance between
Member States dated May 29, 2000.
■ The European Arrest Warrant, as governed by the framework
decision 2002/584/JAI dated June 13, 2002.
In addition, France is a party to several bilateral mutual assistance
treaties in criminal matters, including for instance the 1998 Mutual
Legal Assistance Treaty (“MLAT”) entered into with the United
States.
With regard to the communication of evidence in civil or commercial
matters, French law requires to go through the Hague Convention
on the taking of evidence abroad in civil or commercial matters
dated March 18, 1970.
Failure to comply with these mutual assistance treaties in both
criminal and civil matters may result in violating the French Blocking
Statute of July 26, 1968, as amended. The French Blocking Statute
sanctions with a maximum of six months of imprisonment and EUR
18,000 in fines the illegal communication of sensitive economic,
commercial, industrial or technical information that jeopardises the
nation’s sovereign interests (Art. 1) as well as the communication of
evidence in view of foreign judicial proceedings (Art. 1bis).
7 Procedures for Gathering Information
from a Company
7.1 What powers does the government have generally
to gather information when investigating business
crimes?
As previously explained, the public prosecutor’s office (ministère
public), or the investigating judge (juge d’instruction) as applicable,
are granted broad authority to perform their investigating duties.
However, specific rules apply to police raids (perquisitions), which
depend on whether the investigation is conducted as a flagrant
investigation (enquête de flagrance) or as a preliminary investigation
(enquête préliminaire) (see question 6.1). Raids performed at the
domicile of the suspected person in the context of a preliminary
investigation require obtaining the person’s prior written consent to
the raid, except if the investigation relates to an offense or crime
potentially sanctioned by more than five years of imprisonment
(Art. 76 Crim. Proc. Code). In such a case, the police raid must be
authorised by the judge of liberties and detention (juge des libertés
et de la détention). Police raids are done either in the presence of the
suspected person or his/her representative, or before two witnesses
(Art. 57 Crim. Proc. Code). In this context, police raids may not
be initiated before 6:00 am or after 9:00 pm (Art. 59 Crim. Proc.
Code), but they may extend beyond these hours. In the context of
a flagrant investigation (enquête de flagrance), the prior consent of
5.2 Can crimes occurring outside the limitations period
be prosecuted if they are part of a pattern or practice,
or ongoing conspiracy?
French criminal case law distinguishes between two types of
criminal offenses: immediate offenses (infractions instantanées);
and continuous offenses (infractions continues). For continuous
offenses – such as the handling of stolen goods (recel) – statute of
limitation starts running on the date on which the offense ended.
5.3 Can the limitations period be tolled? If so, how?
Limitations periods run when no investigating act of prosecution is
performed. However, if such an act is performed, the limitations
period starts running anew. In practice, public prosecutors or
investigating judges regularly perform judicial acts to postpone the
limitations period.
6 Initiation of Investigations
6.1 How are investigations initiated? Are there any rules
or guidelines governing the government’s initiation of
any investigation? If so, please describe them.
As per question 1.1, the public prosecutor’s office is responsible for
initiating investigations and overseeing the work of judicial police
in connection with such investigations. The procedure applicable to
investigations depends on the time period when the offense has been
committed. An offense that is being committed or has just been
committed may be investigated under procedural rules applicable to
flagrant investigations (enquêtes de flagrance – Art. 53 to 74 Crim.
Proc. Code). These procedural rules provide more leeway to perform
investigative acts (particularly for police raids (perquisitions) and
interrogations (auditions)). In principle, flagrant investigations last
eight days and may be extended for eight additional days. However,
if the offense is not flagrant, i.e., it has not just been committed,
investigations are conducted under procedural rules applicable to
preliminary investigations (enquêtes préliminaires – Art. 75 et seq.
Crim. Proc. Code).
If an investigating judge (juge d’instruction) is appointed, specific
rules apply to the investigation (so-called instruction – Art. 79 et seq.
Crim. Proc. Code). The investigating judge is seized by the public
prosecutor’s initial indictment (réquisitoire introductif) and his/her
investigating authority is limited to the facts expressly mentioned in
the indictment (saisine in rem). This means that the investigating
judge obtains jurisdiction with regards to specific facts, but not with
regards to specific persons (saisine in personam). Consequently,
if the investigating judge discovers new facts during his/her
investigation, then he/she may only investigate them if the public
prosecutor issues an additional indictment (réquisitoire supplétif)
covering these new facts. Under these limitations, the investigating
judge is granted all necessary prerogatives to “uncover the truth”
(manifestation de la vérité). Consequently, the investigating judge
may request that police officers perform police raids (perquisitions),
telephone tapping (écoutes téléphoniques), interviews (auditions),
etc. Individuals against whom there is no evidence that they are
related to the offence are heard by the investigating judge under the
status of witnesses (témoins) (Art. 100 et seq. Crim. Proc. Code).
Individuals against whom reliable and consistent evidence (indices
graves et concordants) indicate that they are involved in the offense
may not be heard under the mere status of witness (Art. 105 Crim.
Proc. Code): such persons must be placed either under the status
ICLG TO: BUSINESS CRIME 2016 125WWW.ICLG.CO.UK
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce are granted broad authority to conduct criminal investigations
in view of enlightening the truth (manifestation de la vérité).
Consequently, these magistrates may request any document or
information from any person, corporation, public entity, or public
administration in connection with criminal investigations, with
no possibility for these persons or entities to refuse on grounds of
professional secrecy, except under specified circumstances (Art.
60-1 Crim. Proc. Code). These magistrates may also seek assistance
of any expert or qualified person to conduct technical or scientific
tests (Art. 77-1 Crim. Proc. Code).
Questioning of Individuals:
7.6 Under what circumstances can the government
demand that an employee, officer, or director of a
company under investigation submit to questioning?
In what forum can the questioning take place?
Individuals against whom no evidence indicates that they may have
participated in a criminal offense may not be compelled to answer
questions. They may, however, be retained by police officers for
a maximum of four hours (Art. 62 Crim. Proc. Code). If elements
arise indicating that the retained person may have participated in a
criminal offense, such person may continue to be heard by police
officers freely, provided prescribed warnings set forth in Article
61-1 of the French Code of Criminal Procedure have been given
to such person (i.e., the legal qualification of the concerned facts,
the date and place on which the criminal offense took place, the
right to leave the premises at any time, the right to be assisted by an
interpreter and/or by an attorney, the right to remain silent, etc.). In
practice however, if the suspected person decides to leave the police
precinct where he/she is being retained, it is more than likely that
police officers will put such person in custody (garde à vue).
Holding someone in custody is only authorised for persons who are
suspected of having committed or tried to commit an offense (délit)
or crime (crime) sanctioned by imprisonment, provided that the
detention of the person is the only way to ensure specific objectives
such as the conservation of evidence or the presentation of the
suspected person before the public prosecutor, expressly set forth in
Art. 62-2 Crim. Proc. Code.
Except for specific criminal offenses such as organised crime,
terrorism, etc., a person may only be held in custody for a maximum
of 24 hours, which can be renewed once for 24 additional hours if
the concerned criminal offense is sanctioned by imprisonment of
at least one year (Art. 63 Crim. Proc. Code). Specific procedural
rules apply to custody, notably with regard to the rights granted to
the suspected person. The right to counsel when held in custody
prompted significant public debate in France, resulting in the increase
in the rights granted to the detained person. For instance, attorneys
have recently been granted the right to assist their clients during
interviews (auditions) by police officers. However, the attorney’s
role remains very limited, in particular as the attorney does not have
access to the entire file compiled by the public prosecutor but only
to a limited set of documents, and is not entitled to intervene during
the interview of his/her client.
7.7 Under what circumstances can the government
demand that a third person submit to questioning? In
what forum can the questioning take place?
See question 7.6.
the suspected person is not required. Furthermore, in the context
of investigations on organised crime, the judge of liberties and
detention may authorise the judicial police to perform raids outside
of the aforementioned timeframe (Art. 706-89 Crim. Proc. Code).
Document Gathering:
7.2 Under what circumstances can the government
demand that a company under investigation produce
documents to the government, and under what
circumstances can the government raid a company
under investigation and seize documents?
See question 7.1.
7.3 Are there any protections against production or
seizure that the company can assert for any types
of documents? For example, does France recognise
any privileges protecting documents prepared by
attorneys or communications with attorneys? Do
France’s labour laws protect personal documents of
employees, even if located in company files?
French criminal law ensures that attorney-client privilege (secret
professionnel) is protected. To this end, specific procedural rules
govern raids performed at an attorney’s office or domicile, as well as
the seizure of documents issued by an attorney. For instance, police
raids that are done at an attorney’s office or domicile may only occur
upon duly motivated written decision by the magistrate ordering the
raid (i.e., either the public prosecutor or the investigating judge),
in his/her presence and in the presence of the president of the bar
(bâtonnier) (Article 56-1 Crim. Proc. Code). The president of the
bar is the only person entrusted with the authority to consult the
seized documents and to oppose to such seizure. In such a case,
the litigious documents are sealed and listed in distinct specific
minutes (procès-verbal) of the raid. Similar protective provisions
have been introduced into French criminal procedure with regards
to journalists (Art. 56-2 Crim. Proc. Code), physicians (médecins),
notaries (notaires), court bailiffs (huissiers) or former Court of
Appeals attorneys (avoués) (Art. 56-3 Crim. Proc. Code).
With regard to the protection of documents under French labour law,
the core principle is that all documents, emails or files located on an
employee’s computer provided by the employer for work purposes
are deemed of a professional nature and may thus be consulted
by the employer out of the employee’s presence, except if these
documents, emails or files have been marked as being personal or
for which it is reasonably foreseeable that they are of a personal
nature (Cass. Soc., October 18, 2006, n°04-48.025). In the context
of criminal investigations, such documents, even of a personal
nature, may be seized during police raids.
7.4 Under what circumstances can the government
demand that a company employee produce
documents to the government, or raid the home or
office of an employee and seize documents?
See questions 7.1 to 7.3.
7.5 Under what circumstances can the government
demand that a third person produce documents to
the government, or raid the home or office of a third
person and seize documents?
Both the public prosecutor and the investigating judge, if applicable,
FranceGibson, Dunn & Crutcher LLP
WWW.ICLG.CO.UK126 ICLG TO: BUSINESS CRIME 2016
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce Gibson, Dunn & Crutcher LLP France
7.8 What protections can a person being questioned by
the government assert? Is there a right to refuse to
answer the government’s questions? Is there a right
to be represented by an attorney during questioning?
See question 7.6.
8 Initiation of Prosecutions / Deferred
Prosecution / Civil Dispositions
8.1 How are criminal cases initiated?
See question 6.1.
8.2 Are there any rules or guidelines governing the
government’s decision to charge an entity or
individual with a crime? If so, please describe them.
No, there are no such rules.
8.3 Can a defendant and the government agree to resolve
a criminal investigation through pretrial diversion
or an agreement to defer prosecution? If so, please
describe any rules or guidelines governing whether
pretrial diversion or deferred prosecution are
available to dispose of criminal investigations.
French Criminal procedure (Art. 495-7 et seq. Crim. Proc. Code)
recognises the possibility to enter into a guilty plea for all offenses
(délits) punished by imprisonment of more than five years (except
certain specific offenses such as involuntary homicide (homicide
involontaire), media-related offenses (délit de presse), voluntary or
involuntary damage to a person’s integrity or sexual offenses). Such
guilty plea procedure (comparution sur reconnaissance préalable
de culpabilité) is initiated either by the public prosecutor or at
the request of the indicted person or his/her attorney. The public
prosecutor proposes a punishment (imprisonment, fine, and/or
complementary punishment) and the indicted person is granted 10
days to either accept or reject the proposed plea bargaining. Article
495-8 of the French Code of Criminal Procedure provides that the
duration of imprisonment can neither exceed one year nor half of the
imprisonment sentence initially incurred for the concerned offense.
The indicted person must be assisted by an attorney for the entire
duration of the guilty plea procedure. If the plea is accepted, the
suspected person is immediately brought before the President of the
Court of First Instance (président du Tribunal de grande instance),
who has jurisdiction to validate the guilty plea. The role of the
President of the Court of First Instance is to control the materiality
of the concerned facts and the legal qualifications applied by the
public prosecutor prior to validating the guilty plea (Art. 495-9
Crim. Proc. Code).
In practice however, even if the legal conditions are met for the
guilty plea procedure to be followed, public prosecutors do not opt
for such a procedure when the facts at stake or the identity of the
person who has committed the offense require a proper trial before
the Criminal Court of First Instance (Tribunal correctionnel). This
judgment rests within the authority of the public prosecutor to
accept or reject the plea.
8.4 In addition to or instead of any criminal disposition
to an investigation, can a defendant be subject to any
civil penalties or remedies? If so, please describe
the circumstances under which civil penalties or
remedies are appropriate.
Article 2 of the French Code of Criminal Procedure provides
that “civil action seeking to obtain remedy of damages caused
by a crime, an offense or a misdemeanor belongs to any person
who has personally suffered from such damage that was directly
caused by the criminal offense”. In other words, this means that
any defendant may be held liable for civil damages if the crime
caused damage to a third party. However, several conditions must
be met to have standing to lodge a civil action as a victim (partie
civile): the person must have directly and personally suffered from
the criminal offense. Certain non-profit organisations (associations)
have been granted legal standing to initiate civil actions under very
specific conditions listed in Articles 2-1 et seq. of the French Code
of Criminal Procedure.
The partie civile may lodge its claim either before the criminal
court which has been assigned to rule on the criminal action, or
separately before civil courts, which shall, in such a case, postpone
their decision until the criminal court has ruled on the criminal case.
9 Burden of Proof
9.1 For each element of the business crimes identified
above, which party has the burden of proof? Which
party has the burden of proof with respect to any
affirmative defences?
Enshrined in the Declaration of the Rights of Man and Citizen of
1789, the core principle of the French criminal procedure dictates
that any person is deemed innocent until proven guilty (présomption
d’innocence). Criminal offenses may be proved by any mode of
evidence except if provided otherwise by law and the magistrate
ruling on the matter decides according to its firm conviction (intime
conviction), based on evidence brought and discussed before the
court (Art. 427 Crim. Proc. Code). Consequently, any remaining
doubt shall inure to the benefit of the defendant (le doute profite à
l’accusé). Therefore, the burden of proof relies primarily on the
public prosecutor’s office (ministère public) who is the accusing
party in French criminal trials.
9.2 What is the standard of proof that the party with the
burden must satisfy?
As explained in question 9.1 above, the public prosecutor’s office
is primarily tasked with proving that the following three elements
exist to prove that the criminal offense has been committed by
the suspected person: (i) legal element (élément légal), i.e., the
accusation shall indicate on which legal or regulatory text the
criminal proceedings rely; (ii) material element (élément matériel),
i.e., the reality of the act or omission that constitutes the criminal
offense; and (iii) moral element (élément moral), i.e., the intention –
when required, which is not always the case – of the indicted person
to commit the criminal offense.
ICLG TO: BUSINESS CRIME 2016 127WWW.ICLG.CO.UK
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce Gibson, Dunn & Crutcher LLP France
11.3 Is it a defence to a criminal charge that the defendant
was ignorant of the facts i.e. that he did not know
that he had engaged in conduct that he knew was
unlawful? If so, what are the elements of this defence,
and who has the burden of proof with respect to the
defendant’s knowledge of the facts?
French law applies the “no one should ignore the law” adage:
ignorance of the facts does not exempt a person from being
criminally liable. Error on the facts is only admitted with regard to
intentional criminal offense, for which its outcome is not to exempt
the actor from his/her criminal liability but results in rendering the
punishment for an intentional violation inapplicable. Error on the
facts has no impact whatsoever on unintentional criminal offenses.
12 Voluntary Disclosure Obligations
12.1 If a person becomes aware that a crime has been
committed, must the person report the crime to the
government? Can the person be liable for failing to
report the crime to the government?
Under French law, a person who is aware of a crime which effects
may still be prevented or limited may be held liable for not informing
competent judicial authorities and may consequently be punished by
up to three years of imprisonment and EUR 45,000 in criminal fines.
However, exemptions exist for parents or spouses of the actor of
the criminal offense, except if such offense concerns children below
the age of 15 (Art. 434-1 Crim. Code). However, this article does
not create a general obligation to denounce anyone who is known
as being the perpetrator of a criminal offense: it only concerns the
denunciation of a crime, and not the identity of the actor, to allow
for the competent judicial authorities to take appropriate measures
to prevent or limit its effects (Cass. crim., March 2, 1961, Bull. crim.
n°137).
In addition to this a general obligation to denounce criminal offenses:
(i) certain specific professions (such as lawyers, auditors, etc.)
are required to file SARs (declarations de soupçon) to the
administrative authority Tracfin when they suspect financial
transactions to be part of money-laundering schemes,
including those relating to their clients (see question 1.3); and
(ii) civil servants are required to denounce all offenses (crimes et
délits) of which they may become aware in connection with
their work (Art. 40, Crim. Proc. Code).
13 Cooperation Provisions / Leniency
13.1 If a person voluntarily discloses criminal conduct
to the government or cooperates in a government
criminal investigation of the person, can the person
request leniency from the government? If so, what
rules or guidelines govern the government’s ability to
offer leniency in exchange for voluntary disclosures
or cooperation?
Voluntary disclosure of criminal offenses may result in leniency
for certain specific criminal offenses as provided for by the French
Criminal Code, including inter alia: terrorism (Art. 422-1 Crim.
Code), member of a conspiracy (association de malfaiteurs – Art.
450-2 Crim. Code), bombing attacks (attentats – Art. 414-2 Crim.
Code).
9.3 In a criminal trial, who is the arbiter of fact? Who
determines whether the party has satisfied its burden
of proof?
The magistrate ruling on the case (i.e., the Police Court, the
Criminal Court of First Instance or the Assize Court) decides at its
sole discretion on the probative value of the evidence submitted and
discussed before it.
10 Conspiracy / Aiding and Abetting
10.1 Can a person who conspires with or assists another
to commit a crime be liable? If so, what is the nature
of the liability and what are the elements of the
offence?
The accomplice of a criminal offense is sanctioned as the primary
actor of such offense (Art. 121-6 Crim. Code). The notion of
accomplice is defined as the person who knowingly aided the
execution or preparation of the criminal offense, but also as the
person who has provoked a criminal offense or gave orders to
execute such criminal offense, in particular by way of donation,
promise, threat, order, abuse of authority or power (Art. 121-7 Crim.
Code).
11 Common Defences
11.1 Is it a defence to a criminal charge that the defendant
did not have the requisite intent to commit the crime?
If so, who has the burden of proof with respect to
intent?
French law distinguishes between intentional and unintentional
criminal offenses. For intentional criminal offenses, the accusation
(i.e., the public prosecutor’s office) must prove that the suspected
person had the intent to commit the crime. For unintentional
criminal offenses, the public prosecutor’s office is required to prove
the materiality of the criminal offense. Besides, despite lacking
any textual reference, French criminal case law has progressively
considered that for certain intentional criminal offenses, intent was
presumed due to its close connection with the material element
(élément matériel). This is the case for criminal defamation (délit de
diffamation), breach of trust (abus de confiance), and counterfeiting
of literary or artistic masterpieces (délit de contrefaçon d’oeuvres
littéraires ou artistiques).
11.2 Is it a defence to a criminal charge that the defendant
was ignorant of the law i.e. that he did not know
that his conduct was unlawful? If so, what are the
elements of this defence, and who has the burden of
proof with respect to the defendant’s knowledge of
the law?
French criminal law (Art. 122-3 Crim. Code) provides that a person
may not be held criminal liability if such person justifies that he/she
legitimately believed he/she could legally perform the concerned act
due to an unavoidable error in law (erreur de droit).
In practice, such defense is regularly used by company managers
who are found guilty of a criminal offense (relating, in particular, to
employment law), yet in practice such defense is rarely accepted by
French criminal courts.
WWW.ICLG.CO.UK128 ICLG TO: BUSINESS CRIME 2016
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce 13.2 Describe the extent of cooperation, including the
steps that an entity would take, that is generally
required of entities seeking leniency in France, and
describe the favourable treatment generally received.
Apart from specific criminal offenses out of which certain ones are
listed above, there are no official guidelines or steps to be followed
by entities seeking leniency. However, in practice such disclosure
may be helpful to obtain a more favourable result.
14 Plea Bargaining
14.1 Can a defendant voluntarily decline to contest
criminal charges in exchange for a conviction on
reduced charges, or in exchange for an agreed upon
sentence?
See question 8.3.
14.2 Please describe any rules or guidelines governing the
government’s ability to plea bargain with a defendant.
Must any aspects of the plea bargain be approved by
the court?
See question 8.3.
15 Elements of a Corporate Sentence
15.1 After the court determines that a defendant is guilty of
a crime, are there any rules or guidelines governing
the court’s imposition of sentence on the defendant?
Please describe the sentencing process.
Sentences imposed in connection with a criminal offense are
expressly provided for by law, generally in the French Criminal
Code, but also in the Monetary and Financial Code, the Commercial
Code, the Labour Code, and the Environment Code.
Sentences provided for by these codes set the maximum that may be
imposed on a convicted defendant: criminal courts may not exceed
the duration of the imprisonment sentence or the criminal fine set by
a specific article of the code. Within this context, criminal courts
may freely determine the appropriate punishment to be applied,
based on the circumstances of offense, on the personality of the
defendant, on his/her criminal background and other factors. This
is what is referred to as the principle of personalised punishment
(personnalisation des peines).
Until recently, French criminal law provided for minimum
punishment in case of recidivism (so-called floor punishment or
peines planchers). This is no longer the case as these minimum
have been abrogated by statute n°2014-896 of August 15, 2014 on
the individualisation of sentences. However, punishment incurred
in case of recidivism is doubled in respect to both imprisonment and
criminal fine (Art. 132-10 Crim. Code).
15.2 Before imposing a sentence on a corporation, must
the court determine whether the sentence satisfies
any elements? If so, please describe those elements.
Several elements must be complied with to ensure the validity of the
sentence, including:
■ The obligation imposed on the tribunal to rule on a case after
deliberations (délibéré) only, i.e., after discussion with the
other members of the tribunal. Under French criminal law,
the tribunal’s deliberations are kept secret. The tribunal is
required to discuss on any preliminary questions, on whether
the suspected person is guilty of the offense (délibéré sur
la culpabilité) and if so, on the punishment to be applied to
the convicted person (délibéré sur la peine). For cases tried
before the Police Court (Tribunal de police) or the Criminal
Court of First Instance (Tribunal correctionnel), deliberations
are often scheduled to occur later than the hearing itself, with
no maximum delay to be complied with (Art. 462 Crim. Proc.
Code). However, for matters tried before the Assize Court
(Cour d’assises), deliberations must occur immediately after
the closure of debates (cloture des débats) and the decision
is rendered after deliberations, which may not be interrupted
(Art. 355 et seq. Crim. Proc. Code).
■ The decision must be duly motivated, in particular with
regard to all criminal offenses, all prosecuted persons, and
the punishment incurred, etc.
■ The decision must indicate the nature and composition of the
court, and must be rendered orally, during a public hearing.
16 Appeals
16.1 Is a guilty or a non-guilty verdict appealable by either
the defendant or the government?
Verdicts of guilt or non-guilt are appealable under French law by both
the defendant and the public prosecutor’s office (ministère public)
(Art. 497 Crim. Proc. Code), which may be lodged within 10 days
following the date on which the decision has been orally rendered
by the court (Art. 498 Crim. Proc. Code). Specific conditions apply
to appeal of criminal decisions rendered by the Assize Court: while
guilty verdicts may be appealed notably by the defendant or the
public prosecutor’s office (Art. 380-1 Crim. Proc. Code), acquittals
may only be appealed by the general prosecutor (procureur général)
before the Court of Appeals (Art. 380-2 Crim. Proc. Code).
16.2 Is a criminal sentence following a guilty verdict
appealable? If so, which party may appeal?
See question 16.1.
16.3 What is the appellate court’s standard of review?
The Court of Appeals has jurisdiction to review both the facts and
the law with regard to the appealed decision.
16.4 If the appellate court upholds the appeal, what powers
does it have to remedy any injustice by the trial court?
The Court of Appeals hears and rules on the case all over again.
Consequently, the Court of Appeals may either acquit the convicted
person, confirm the decision previously rendered, or modify part of
the decision submitted to its review.
FranceGibson, Dunn & Crutcher LLP
ICLG TO: BUSINESS CRIME 2016 129WWW.ICLG.CO.UK
© Published and reproduced with kind permission by Global Legal Group Ltd, London
Fr an ce FranceGibson, Dunn & Crutcher LLP
Gibson, Dunn & Crutcher LLP is a leading international law firm. Consistently ranking among the world’s top law firms in industry surveys and major
publications, Gibson Dunn is distinctively positioned in today’s global marketplace with more than 1,200 lawyers and 18 offices. The firm’s offices
operate on an integrated basis so that clients may draw on the depth, experience and other resources provided by its multi-office structure.
Nicolas Autet
Gibson, Dunn & Crutcher LLP
166 rue du faubourg Saint-Honoré
75008 Paris
France
Tel: +33 1 56 43 13 00
Email: nautet@gibsondunn.com
URL: www.gibsondunn.com
Nicolas Autet is a French qualified Of Counsel attorney in the Paris
office of Gibson Dunn. Specialised in public law and litigation,
Nicolas Autet has developed a strong practice before civil and
commercial courts. He also represents clients before the French
Administrative Supreme Court (Conseil d’Etat) and the French
Constitutional Supreme Court (Conseil constitutionnel). He has
extensive experience representing and assisting the French State,
governmental bodies, state-owned and private entities in their
development, the management of their regulatory environment and
their administrative proceedings. He also practises arbitration.
Mr. Autet’s practice is also focused on public-private partnerships,
antitrust and French and European regulatory law, with particular
expertise in the rail, energy banking and insurance sectors.
Mr. Autet is recommended as a leading lawyer for France:
Administrative and Public Law by Legal 500 EMEA (2012 - 2015).
Prior to joining Gibson, Dunn & Crutcher in 2004, Mr. Autet spent two
years at a major U.S. law firm and another two years working for a top
French law firm. Mr. Autet is fluent in English.
Salomé Lemasson is a French qualified associate in the Paris office of
Gibson Dunn. Her practice focuses on corporate law, but also includes
a thorough experience in employment law and international arbitration.
In addition, she specialises in Compliance and FCPA related matters,
and has developed strong expertise in personal data protection issues
in the context of trans-border discovery procedures. Ms. Lemasson is
fluent in French, English and Spanish.
Salomé Lemasson
Gibson, Dunn & Crutcher LLP
166 rue du faubourg Saint-Honoré
75008 Paris
France
Tel: +33 1 56 43 13 00
Email: slemasson@gibsondunn.com
URL: www.gibsondunn.com
59 Tanner Street, London SE1 3PL, United Kingdom
Tel: +44 20 7367 0720 / Fax: +44 20 7407 5255
Email: sales@glgroup.co.uk
www.iclg.co.uk
Other titles in the ICLG series include:
■ Alternative Investment Funds
■ Aviation Law
■ Business Crime
■ Cartels & Leniency
■ Class & Group Actions
■ Competition Litigation
■ Construction & Engineering Law
■ Copyright
■ Corporate Governance
■ Corporate Immigration
■ Corporate Recovery & Insolvency
■ Corporate Tax
■ Data Protection
■ Employment & Labour Law
■ Environment & Climate Change Law
■ Franchise
■ Gambling
■ Insurance & Reinsurance
■ International Arbitration
■ Litigation & Dispute Resolution
■ Lending & Secured Finance
■ Merger Control
■ Mining Law
■ Oil & Gas Regulation
■ Patents
■ Pharmaceutical Advertising
■ Private Client
■ Private Equity
■ Product Liability
■ Project Finance
■ Public Procurement
■ Real Estate
■ Securitisation
■ Shipping Law
■ Telecoms, Media & Internet
■ Trade Marks

PDF Document reader online

This website is focused on providing document in readable format, online without need to install any type of software on your computer. If you are using thin client, or are not allowed to install document reader of particular type, this application may come in hand for you. Simply upload your document, and Docureader.top will transform it into readable format in a few seconds. Why choose Docureader.top?

  1. Unlimited sharing - you can upload document of any size. If we are able to convert it into readable format, you have it here - saved for later or immediate reading
  2. Cross-platform - no compromised when reading your document. We support most of modern browers without the need of installing any of external plugins. If your device can oper a browser - then you can read any document on it
  3. Simple uploading - no need to register. Just enter your email, title of document and select the file, we do the rest. Once the document is ready for you, you will receive automatic email from us.

Previous 10

Next 10