PUBLICATION OF THE CRITERIA FOR APPROVAL OF ANTI-CORRUPTION GROUPS HOPING TO EXERCISE THE RIGHTS OF CIVIL PARTIES IN FRENCH CRIMINAL INVESTIGATIONS

As noted in previous updates (see the November 2013 update), the December 2013 law on tax fraud and serious economic and financial crime (Loi n° 2013 du 6 décembre 2013 relative à la lutte contre la fraude fiscal et la grande délinquance économique et financière) permits accredited organisations to exercise the rights of civil parties in corruption cases.

The French Government has now published a decree setting out the criteria that an association must meet in order to gain the necessary approval (Decree n° 2014-327). As well as including the fight against corruption in its articles, the association must:

  • Have been in existence for at least five years;
  • Have engaged in effective (and public) anti-corruption activities;
  • Have a sufficient number of members;
  • Be disinterested and independent; and
  • Operate in accordance with its articles.

Following the nomination of Eliane Houlette as the first financial public prosecutor (procureur de la République financier) with national jurisdiction (see the February 2014 update), the publication of the criteria represents a further important step in the implementation of the law on tax fraud and serious economic and financial crime.   

CORPORATE CRIMINAL LIABILITY: THE SUPREME COURT (COUR DE CASSATION) REAFFIRMS THE NEED TO ATTRIBUTE THE OFFENCE TO A SPECIFIC BODY OR REPRESENTATIVE

In a decision dated 1 April 2014 (n°12-86.501), the French Supreme Court has reaffirmed the requirement that the offence in question be attributed to a body or representative of a legal person if it is to incur criminal liability.

Article 121-2 of the French Criminal Code provides for legal persons to be "criminally liable for the offences committed on their account by their organs and representatives". In principle, therefore, corporate criminal liability requires the identification of an organ or representative that has committed the offence on the legal person's behalf.

Nonetheless the French courts appeared to have moved away from this requirement, in some cases even suggesting that in certain circumstances, there should be a presumption that the offence in question was attributable to the company's organs or representatives.

However, recent decisions have indicated a growing tendency to adopt a stricter reading of Article 121-2. This was confirmed by the decision of 1 April, in which the Supreme Court overturned a Court of Appeal judgment that had convicted a company of counterfeit sales on the ground that the Court of Appeal had not sought to identify the body or representative that had committed the offence on the company's behalf.

While the judgment does not remove the uncertainty that still surrounds this area of the law, it is further support for the view that the French courts are returning to a strict interpretation of the requirements for corporate criminal liability.