FRANCE Law and Practice Contributed by: Christophe Ingrain, Tristan Gautier and Benoît Martinez, Darrois Villey Maillot & Brochier
3.8 Consumer Criminal Law Most consumer criminal practices are prohibited and sanctioned under the offence of misleading commer - cial practices. A commercial practice is misleading when it is contrary to the requirements of professional diligence and materially distorts, or is likely to materi - ally distort, the economic behaviour of the average consumer (Article L. 121-1 et seq., CC). It can be char - acterised by its circumstances (when it creates con - fusion with another good or service, a brand, a trade name, or another distinctive sign of a competitor, or relies on false or misleading claims), by its advertising or promotional campaigns, or by statutory presump - tion (Article L. 121-4, CC). The offence is intentional: the trader or professional must have acted knowingly to mislead consumers. It is punishable by two years’ imprisonment and a fine of EUR300 000, which may be increased to 10% of the average annual turnover, calculated on the basis of the last three annual turnovers, or 50% of the advertis - ing expenses incurred. Other commercial practices are prohibited and sanc - tioned by the Consumer Code. 3.9 Cybercrimes, Computer Fraud and Protection of Company Secrets Cybercrime is mainly provided for under Articles 323- 1 to 323-8, CP, which criminalise unlawfully access - ing, remaining within, disrupting, or introducing data into an automated data processing system ( système de traitement automatisé des données STAD). These offences are generally punishable by five years’ impris - onment and a fine of EUR150,000 (Article 323-2, CP). These penalties can be increased to a maximum of ten years’ imprisonment when the offence is committed by an organised group and against a STAD operated by the state. 3.10 Financial/Trade/Customs Sanctions The CMF provides a framework for the freezing of assets and the prohibition of payments in application of EU and UN sanctions (L. 562-2, L. 562-3 and L. 562-4, CMF). Article L. 562-4, CMF, provides for the obligation to comply without delay with asset freezing measures decided by ministerial order.
• an intentional element, which results from the taxpayer’s awareness of the inaccuracy of the declarations made to the tax administration; mere negligence or error is insufficient. Penalties Tax fraud is punishable by five years’ imprisonment and a fine of EUR500,000, which may be increased to twice the amount of the proceeds of the offence. The attempt to commit tax fraud is punishable under the same terms. The penalties may be increased to seven years’ imprisonment and to a fine of EUR3 million where the acts were committed by an organised group or carried out in certain circumstances. 3.6 Financial Record-Keeping Every trader or company must record all transac - tions affecting its assets and liabilities and prepare annual financial statements that give a true and fair view of its financial situation. Certain accounting rules carry criminal sanctions, although not all entities are affected by this repressive regime. It mainly applies to company directors of limited liability companies ( sociétés à responsabilité limitée SARL) and public limited companies ( sociétés anonymes SA). By con - trast, individual traders and artisans, while required to maintain accounts, do not commit a criminal offence for breaching these obligations, except in the context of insolvency proceedings, where the absence or fal - sity of accounting records may amount to bankruptcy under the Commercial Code. 3.7 Cartels and Criminal Competition Law Anti-competitive practices are primarily governed by Articles L. 420-1 to L. 420-7, C.Com. and are com - plemented by the enforcement powers of the French Competition Authority. Such offences committed by individuals (not legal enti - ties) are punishable by four years’ imprisonment and a EUR75,000 fine (Article L. 420-6, C.Com.). The Com - petition Authority may impose pecuniary sanctions on legal entities (Article L. 464-2, C.Com.), the maximum fine being 10% of the global turnover achieved by the company or group of companies during the preceding financial year or a EUR3 million fine.
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