Clarification of the scope of the criminal liability of the acquiring company
By its April 13, 2022 caselaw (Cass. crim., Apr. 13, 2022, n° 21-80.653), the Criminal Division of the Cour de Cassation clarified the regime of the transfer of criminal liability to the absorbing company in the event of a merger-absorption, which had previously been recognized by its caselaw reversal of November 25, 2020 (Cass. crim., Nov. 25, 2020, n° 18-86.955).
If a merger-absorption transaction does not fall within the conditions set by this reversal and allowing such a transfer (merger (i) after November 25, 2020 and (ii) falling within the scope of Directive 78/855/EEC), the criminal liability of the absorbing company for acts committed by the absorbed company may still be retained in case of fraud.
The judges therefore have to rule on the existence of such fraud, by requesting additional information if necessary.
In this case, the Cour de Cassation has overturned the appeal decision insofar as it dismissed the criminal liability of the absorbing company for receiving stolen company assets on the grounds that the merger had taken place in December 2005, although without having sought any possible fraud.