FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe, Aaron Bass and Céline Serpagli, Kiejman & Marembert
Offences Committed Outside the French Territory As a principle, French criminal law does not apply to offences committed outside the French territory. In practice, however, there are several important exceptions. French law may apply in the following situations. • “Indivisibility” – where an offence committed abroad is strongly linked to another offence com - mitted in France. In such cases, a French criminal court will assert jurisdiction of the crime committed outside of France. • French nationality of the perpetrator – French crimi - nal law applies to offences committed abroad by a French national if (i) the offence is punishable under the law of the state where the acts were commit - ted (ii) the perpetrator of the offence has not been definitively tried abroad for the same offence or, in the event of conviction, that the sentence has not been executed nor time-barred and (iii) prosecution in France is initiated by the public prosecutor, pre - ceded by a complaint from the victim or an official report by the authorities of the country where the acts were committed. • French nationality of the victim – French criminal law applies to offences committed abroad to the detriment of a French national at the time of the offence if (i) the offence is punishable by imprison - ment under the law of the country where the acts were committed, (ii) the perpetrator of the offence has not been definitively tried abroad for the same offence or, in the event of conviction, that the sen - tence has not been executed nor time-barred, and (iii) prosecution in France is initiated by the public prosecutor, preceded by a complaint from the victim or an official report by the authorities of the state where the acts were committed. • Specific extraterritorial offences – French law applies in all circumstances to a number of offenc - es committed abroad by a French national, a habit - ual resident of France, or a person carrying out all or part of their economic activity in France. These include bribery and influence-peddling and offenc - es affecting the financial interests of the European Union (such as bribery and money laundering). In these cases, French courts will assert jurisdiction regardless of whether or not the prosecuted con -
duct is a crime in the foreign country where it was committed. 3.3 Corporate Liability Corporate criminal liability may arise in respect of any offence committed on a company’s behalf by its bodies or representatives. Until recently, the notions of bodies and representatives were confined to the persons formally designated by the company and only within that company. Recent case law broad - ened these notions to include de facto bodies and representatives, irrespective of formal titles or legal ties, even when these bodies operate as group-level bodies rather than within a single entity. In a famous case dated 16 June 2021, the French Supreme Court reversed its previous position and considered that a holding company could be found criminally liable for bribery of foreign public officials based on acts committed not by its legal representa - tives but by employees of a branch – who did not even hold formal delegations of authority – and by the holding company’s risk committee. In this instance, the court considered that the corrupt acts were “the expression of a group policy determined by the estab - lishment of a complex organisation”. For offences such as bribery, influence-peddling and the publication or presentation of inaccurate financial statements, a company may be held directly liable as perpetrator, provided the statutory elements are satisfied. On the contrary, for offences such as embezzlement of public funds, unlawful taking of interest and favour - itism – offences which require a principal perpetrator who is a public official, entrusted with a public service mission, or holding an elected mandate – a private company cannot be prosecuted as perpetrator. In such circumstances, however, a company may still be prosecuted as accomplice, or for benefiting from or handling the proceeds. The criminal liability of a company does not pre - clude the prosecution of individuals as perpetrator or accomplices in respect of the same acts.
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