Corporate criminal liability, merger-absorption, parent company, subsidiary, Court of Cassation, European jurisprudence, penal responsibility, legal persons, criminal law, company law
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Abstract
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Abstract
The Court of Cassation rules on the criminal liability of legal persons in mergers and acquisitions, setting a precedent for future cases.
Extract
[...] It recalled the constant case law of the Court of Cassation, i.e. the absence of conviction of the absorbing company for facts committed before the merger-absorption by the absorbed company. The Criminal Chamber attempts to go against this position by relying on Articles 121-1 of the Penal Code, L.236-3 of the Commercial Code and 6 of the Penal Procedure Code. In parallel, it relies on a decision made by the Court of Justice of the European Union (CJEU March 2015, Modelo Continente and on that of the European Court of Human Rights (24 October 2019, Carrefour France against France). [...]
[...] It judges that the doctrine of the court is not unpredictable on this point and is therefore applicable to mergers-absorptions concluded before this judgment. The means of the appeal are therefore dismissed by the supreme judges. Analysis : The present decision constitutes a reversal of jurisprudence. The judges have been widely pedagogical. They have relied both on the texts of the law but also on European jurisprudence and have indeed reminded the obligation for national jurisdictions to interpret their internal law in the sense of European law. [...]
[...] - Case summary Cass crim June 2021, n°20-83.098 The criminal chamber of the Court of Cassation had to rule on the contours of the criminal liability of the legal person included in a group of companies in a decision dated 16 June 2021. In this case, a holding company is being accused of paying commissions to public officials and political personalities. These commissions, which had a fraudulent character, were addressed to the group's subsidiary in which two directors were the subject of a judicial investigation. Before the correctional court, the holding is accused of active corruption of a foreign public official. [...]
[...] The Criminal Chamber of the Court of Cassation rejected the appeal and sided with the judges of the fact-finding court. They judged, based on Article 121-2 of the Penal Code, that "the Court of Appeal, which, in order to retain the penal responsibility of a holding company, retains that the active corruption of a foreign public official was committed, on behalf of this company, by the combination of the interventions of three employees of its subsidiaries, representatives of fact of the parent company ( . [...]
[...] 20-83.098 - Criminal liability of managers and legal persons - Case summaries - Case summary - Crim. Cass November 2020, no. 18-86.955 The Criminal Chamber of the Court of Cassation had to rule on the criminal liability of managers and legal persons in the context of a merger-absorption in a decision dated 25 November 2020. In this case, a fire occurred on 28 January 2002 in the warehouses of the company Intradis. The latter was summoned to the correctional court on 23 November 2017 on the charge of involuntary destruction. [...]
