This article presents the different aspects of white collar crime and, more specifically, the types of criminal offences covered by this branch of business law.
What is white collar crime?
White collar crime covers non-violent offences committed for financial gain and contrary to public order that are likely to intervene in the course of business.
A white collar crime defense attorney must therefore assess the risks with regard to criminal liability of his clients in the course of their businesses, protects his clients’ rights if they are the target of an criminal investigation and defend their cases before court.
Based in Paris, Belot Malan & Associates lawyers are experienced in criminal matters and specialised in white collar crime.
White collar crimes cover very diverse situations. White collar crime cases include ordinary criminal offences (e.g. theft, fraud, breach of trust, corruption) as well as offences stemming from consumer law (e.g. deception), corporate law (e.g. misuse of company asset), competition law (e.g. anti-competitive cartels) or securities law (e.g. insider trading).
Ordinary criminal offences as part of white collar crimes
Principal criminal offences
- Misuse of corporate asset (abus de biens sociaux): occurs when the manager knowingly misuses corporate property or credits for opposite interest to the company. This criminal offence is defined and repressed by the provisions of article L. 241-3, 4° of the French commercial code.
- Bribery (corruption): bribery is defined as “active” (article 433-1 of the French criminal code) when the briber offers presents, promises, bribes or any advantage to a person vested with public authority in order to obtain a certain result facilitated the latter’s public office and/or his influence on a public authority. Bribery is defined as “passive” (article 432-11 of the same code) when a person vested with public authority is soliciting or accepting presents, promises, bribes or any advantage for himself or others in exchange for achieving a certain result facilitated by his public office and/or his influence on a public authority.
- Blackmail (chantage): pursuant to article 321-10 of the French criminal code, blackmail is the act of obtaining, by threatening to reveal or impute facts of such a nature as to prejudice honour or consideration, either a signature, a commitment or a waiver, or the disclosure of a secret, or the delivery of funds, values or any property.
- Theft (vol): theft is defined by article 311-1 of the French criminal code as the misappropriation of another person’s property.
- Fraud (escroquerie): according to the provisions of article 313-1 of the French criminal code, fraud is the act of deceiving a natural or legal person, by using a false name or quality, or abusing a quality, or using fraudulent means, in order to incite her to give funds, securities or property, or to provide a service, or to consent to an obligation or disclaimer.
- Breach of trust (abus de confiance): a breach of trust occurs when a person entrusted with funds, securities or property embezzles these assets to the prejudice of another (article 314-1 of the French criminal code).
Other criminal offences
- Forgery and use of forgery (faux et usage de faux): article 441-1 of the French criminal code defines forgery as any fraudulent alteration of the truth, of such nature as to cause prejudice and achieved by any means whatsoever, and which may have legal consequences.
- Possession of stolen goods (recel): this criminal offence is defined by article 321-1 of the French criminal code as the act of concealing, detaining or transmitting a good, directly or not, by being aware that this good is the result of a crime or offence. This article punishes also benefiting knowingly and by any means of the proceeds of a crime or offence.
- Money-laundering (blanchiment): legalising goods or properties, which result from a crime, by facilitating or helping to facilitate the false justification of their origin, is punished by article 321-1 of the French criminal code.
- Extortion (extorsion): pursuant to article 312-1 of the French criminal code, extortion is the act of obtaining by violence, threat of violence or coercion either a signature, a commitment or a waiver, or the disclosure of a secret, or the receipt of funds, values or any property.
- Influence peddling (trafic d’influence): influence is a form of bribery, which occurs when person vested with public authority receives donations in exchange of the promise or the grant of any advantage such as market, employment, honours, etc.
- Illegal acquisition of interest (prise illégale d’intérêts): according to article 432-12, the acquisition of an interest in a company or a corporate operation is illegal when a person vested with public authority or is an elected official is in charge of the surveillance, management or payment of the company or corporate operation.
- Organisation of insolvency (organisation frauduleuse d’insolvabilité) : defined by article 314-7, the debtor is organising his own insolvency in order to avoid fulfilling his debt repayment, by increasing his liabilities or decreasing his assets, or concealing all or part of his income or properties.
Specific white collar crimes
White collar criminal law governs offences from different fields, i.e. corporate law, finance and securities law, tax law, labour law, intellectual property law, consumer law, competition and insolvency law. We will present some of them.
Competition law: anti-competitive practices
Anti-competitive agreements, prohibited by article L420-1 of the French commercial code, aim to distort competition by restricting market access or sharing markets, artificially increase or lower prices, restrict or control investments or technical development.
Natural persons actively involved in the implementation of such anti-competitive practices are facing 4 years’ imprisonment and 75 000 euros fine.
Consumer law: consumer fraud
Pursuant to article L441-1 of the French consumer code, it is forbidden for any person, party or not to a contract, to deceive or attempt to deceive the contractor, by any means or process, even via a third party, either:
i) on the nature, kind, origin, substantial qualities, composition or content of all goods, or
ii) on the quantity of the goods delivered or on the delivery, or
iii) on the suitability for use, the risks inherent to the use of the product, the checks carried out, the instructions for use or the precautions to be taken.
Insolvency law: fraudulent bankruptcy
The bankruptcy can be broadly defined as a fraudulent governance of a commercial company, while being insolvent, by its manager. Bankruptcy offences can the form of embezzlement of the debtor’s assets or false bookkeeping. This offence is provided by article L654-1 of the French commercial code and the related offences are provided by articles L654-8 to L654-15.