FRANCE Trends and Developments Contributed by: Christophe Ingrain, Paul Mallet, Isaac Arnoud and Arthur Teisseire, Darrois Villey Maillot & Brochier
The prosecution also relied on the Digital Services Act (Regulation 2022/2065), which imposes obligations of systemic risk assessment, algorithmic transparency, and independent auditing on very large online plat - forms (VLOPs). During the investigation, the French judicial authorities requested access to parts of X’s source code and internal technical documentation to verify the integrity of its weighting systems. The company declined to provide full access, citing trade secret protection and concerns regarding potential interference with the operation of its recommenda - tion systems. These proceedings illustrate a growing recourse to criminal procedure as a means of ensuring transpar - ency and accountability in the digital sphere. They also expose the practical tension between investiga - tive imperatives and the legal protections afforded to data privacy. Both cases exemplify a broader evolution in enforce - ment strategy: digital intermediaries are increasingly treated as active participants within the framework of criminal justice, subject to obligations comparable to those imposed on traditional regulated entities. This shift underscores the transformation of criminal law into a tool for supervising technological governance, where questions of encryption, algorithmic integrity, and data access are progressively addressed through judicial rather than regulatory mechanisms. Rethinking complicity These proceedings also prompt a broader reflection on the application of traditional criminal law concepts to contemporary technological realities. In particular, they challenge the contours of long-standing notions such as complicity, questioning how principles devel - oped in the context of physical conduct can be trans - posed to the digital sphere. Courts are increasingly asked to determine whether the provision of a digital service, such as an encrypted channel, a data-host - ing infrastructure, or a communication interface, can constitute a form of assistance or facilitation to the offences committed through it. Traditionally, under Articles 121-6 and 121-7 of the French Criminal Code, criminal complicity requires in particular two essential elements:
• a voluntary participation in the principal offence; and • the knowledge of its criminal purpose. However, a recent interpretive trend seeks to extend this framework to actors whose involvement is purely technological or logistical. In this approach, the exist - ence of a tool capable of misuse could be enough to establish a link of facilitation – even without proof of intent or prior agreement. Such reasoning, if general - ised, risks diluting the element of intent and broaden - ing criminal liability beyond its legitimate scope. Furthermore, this approach might conflict with funda - mental guarantees such as the principle of personal criminal liability and the principle of legality, which requires offences to be precisely defined and fore - seeable. From a systemic perspective, extending complicity to purely technical or architectural choices could shift criminal law from a logic of sanction to a logic of regu - latory supervision. In this model, the criminal process would no longer target conduct but rather the design and functioning of digital infrastructures. This raises the question of whether criminal law is the appropriate instrument for addressing governance failures in the digital economy – or whether such mat - ters should remain within the realm of administrative mechanisms. Fighting Organised Crime: Lessons for the Future of Corporate Criminal Enforcement While primarily aimed at dismantling drug trafficking networks, Law No 2025-532 of 13 June 2025, titled the Law to Free France from the Trap of Narcotraf - ficking, introduces mechanisms that could, in time, influence the broader landscape of white-collar crime matters. The creation of the PNACO: towards a unified model of specialised prosecution A key feature of the law is the establishment of the National Prosecution Office for Organised Crime (PNACO), operational from January 2026. Modelled on the National Financial Prosecutor’s Office (PNF) and National Anti-Terrorist Prosecutor’s Office (PNAT),
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