Press review
15 April 2022

Press review – Week of 11 April 2022

In this press review, you will find articles relating to the new jurisprudential trends which tends to stop prosecutions in case of unreasonable delay, several clarifications relating to criminal procedure and in particular to Personal Data Protection. Moreover, the review focuses on the criminal qualification of concealed work. Finally, it discusses the accumulation of sanctions in case of tax audits and the impact of allegations relating the overreliance on McKinsey by French public institutions on the presidential election.

 

The post-Sapin 2 law: merely modifications or a real revolution? (in french)

The law of 9 December 2016, known as the Sapin 2 law, opened a new era in the fight against corruption in France. Five years after its entry into force, assesments and proposals for new legislation in this area have been published. A bill “aimed at reinforcing the fight against corruption” presented on 19 October 2021 by Mr Raphaël Gauvain, then announced as the “Sapin 3 law”, does not seem to fit into the legislative debate in view of the busy parliamentary calendar between now and the presidential elections. This Sapin 3 law, which is not expected to be discussed any time soon, nevertheless raises the question of whether the changes considered by these various assessments and proposas herald a revolution or merely practical modifications. > Read article

 

#White collar crime: La Défense boiler room: referral of the case to the plenary chamber

A new trend in case law is emerging following the multiple cancellations of criminal proceedings due to unreasonable delay. Indeed, several courts have recently decided to cancel these prosecutions in matters of financial delinquency and the Court of Cassation will meet from 22 September 2022 to decide on the future of this trend.). > Read article

 

Capture of computer data in matters of organised crime and delinquency: the use of means covered by national defence secrecy is in line with the Constitution

Article 706-102-1 of the Code of Criminal Procedure, which allows the public prosecutor or investigating judge to designate an expert to access computer data, is consistent with the Constitution. The Council carried out a proportionality check between the adversarial principle and the constitutional objective of safeguarding the fundamental interests of the Nation before considering that such an infringement is justified (Constit., Decision No. 2022-987 QPC of 8 April 2022). > Read article

 

Clarification on access to metadata for public security purposes

The Court of Justice of the European Union confirms the case law on the retention of personal data. Indeed, the Court opposes legislation allowing a generalized and undifferentiated retention of traffic and location data to fight serious crimes. Furthermore, the decision specifies the possible derogations in this area (CJEU, 5 April 2022, G. D. v. Commissioner of An Garda Síochána, Case C-140/20.>Read article

 

A new invincible obstacle to the enforcement of sentences

A convicted person who has not had the benefit of an interpreter and who has not been able to understand the meaning of the judgement pronounced against him in a language he understands, can claim an “invincible obstacle” allowing the postponement of the time limit for appeal provided for in Article 712-11, 2°, of the Code of Criminal Procedure (Cass. Crim., 23 March 2022, No. 21-83.064). > Read article

 

The role of the correctional judge in sentence adaptation

The Court of Cassation considers that in the absence of sufficiently convincing evidence, the correctional court must give precedence to the adjustment of the sentence over firm imprisonment (Cass. crim., 6 April 2022, n° 21-83.457). >Read article

 

Clarification by the Court of Cassation on the time limits for ruling by the investigating chamber

The appeal by the Public Prosecutor’s Office of the order pronouncing a judicial review in response to requests for provisional detention is subject to the provisions of paragraph 4 of article 194 of the Code of Criminal Procedure relating to the limitation of the time limit for judgment to 15 days (Cass. crim., March 30, 2022, n° 22-80.021). > Read article

 

Click and walk: no subordination link = no undeclared work

The Court of Cassation considers that the offence of concealed work is only characterised if the link of subordination between the employer and the employee is demonstrated (Cass. crim., 5 April 2022, n° 20-81.775). > Read article

 

#Banking and financial market litigationCumulation of sanctions in case of opposition to a tax audit and 100% surcharge: the Constitutional Council rules

The Constitutional Council considers that the cumulation of penalties following an opposition to a tax audit and the 100% surcharge comply with the Constitution because they target distinct interests (Cons. constit., Decision n° 2022-988 QPC of April 8, 2022). > Read article

 

#Tax enforcement: McKinsey affair: how the PNF investigation is affecting Emmanuel Macron’s campaign

After the opening of a preliminary investigation by the PNF for aggravated laundering of tax fraud against the consulting giant McKinsey, one has to wonder about the potential impact of these proceedings, which fall in the middle of the presidential campaigns. > Read article

 

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