Commercial transactions, whether between professionals or with a third party, are subject to the following conditions consumerare based on trust and respect for each other. rules precise. Unfortunately, some companies may be tempted to resort to practices unfair to take advantage illegal. This type of behaviour, known as commercial fraud, exposes the perpetrators to severe civil and criminal penalties, while seriously damaging the reputation of the company and the loyalty of the consumer. trade. Understanding the nature of these frauds, recognise potentially dangerous situations and how to deal with them. answer is therefore essential for any economic player concerned about the environment. protection of its business. This page provides an overview of the main risks and the defence mechanisms in place. material commercial fraud.
What is commercial fraud?
General definition and challenges for companies
Commercial fraud can be broadly defined as any intentional act of deception or concealment committed in the course of an economic activity, with the aim of obtaining financial gain. illegal or cause harm to another person (business partner, customer, competitor, etc.), administration). The stakes are high for companies. Proven fraud can result in heavy financial penalties (fines, damages), prison sentences for managers, bans on certain activities and, above all, lasting damage to the image and credibility of the company. company. Vigilance and prevention are therefore essential, whether in terms of internal fraud (committed by a employee) or external fraud (committed by a third party).
Distinction between civil fraud and criminal fraud
It is important to distinguish fraud in the civil sense from criminal fraud. Civil fraud is mainly a matter of contract law and civil liability (for example, fraud in the conclusion of a contract, article 1137 of the Civil Code). The aim is to obtain compensation for the loss suffered by the victim (cancellation of the contract, damages), sometimes by rescinding the contract. amicable. Criminal fraud, on the other hand, concerns specific offences defined and punishable by the Criminal Code or the Consumer Code, because they are detrimental to the economic protection from public. These offences, such as deception or falsification, can be prosecuted ex officio by the department public and result in criminal penalties (fines, imprisonment), independently of the civil action for compensation. The direction General Directorate for Competition, Consumer Affairs and Fraud Control (DGCCRF) is often responsible investigations into material.
The main types of commercial fraud punishable under criminal law
French law punishes a number of forms of commercial fraud. Two offences are particularly common and are monitored by the authorities, such as DGCCRFparticularly in the sector of the online sales and trade traditional. This type of fraud can alter substantially the economic behaviour of the consumer.
Deception: protecting the contracting party's consent
Deception is the act of misleading a contracting party as to the nature, origin, substantial qualities, composition or quantity of goods delivered (for example, in the case of a buy online with delivery), or on the suitability for use, the risks inherent in the use of the product or serviceThe aim is to protect the informed consent of purchasers (whether professionals or consumers). The aim is to protect the informed consent of purchasers (whether professionals or consumers). vulnerable). The manoeuvres can be varied: false allegations or misleading advertising on a website or via social medialabelling misleading, false discountconcealment of a major defect, use offalse elements or a misleading element. Le price indicated must correspond to the reality of the offer. For a more detailed analysis of this infringement, see our article on the offence of deception.
Falsification: guaranteeing the integrity of products and services
Even more seriously, adulteration involves the fraudulent alteration of foodstuffs or agricultural or natural products intended for sale. This includes adding unauthorised substances, altering the composition to mask a defect, or selling out-of-date products presented as fresh. The aim of this offence is to guarantee health safety and fair trading in essential products. The penalties are naturally heavier because of the risks potential health risks public. Specific issues relating to falsification of goods are covered in greater depth in another article. This business practice is severely repressed by the law.
Other related offences (brief mention: fraud, breach of trust if relevant)
Other criminal offences may apply in the commercial context, although they are distinct. Swindling (article 313-1 of the Criminal Code) involves the use of fraudulent manoeuvres to obtain the delivery of a good, a service or an act (for example, a "bribe"). bank card fraud during a payment). Breach of trust (article 314-1 of the French Penal Code) is the misappropriation of property given on condition that it is returned, represented or used for a specific purpose (such as a subscription unsolicited). Practices such as pyramid selling are also manoeuvres illegal.
Identifying risk situations for your company
La fraud prevention involves identifying areas of vulnerability within the company and in its relations with the outside world, particularly with regard to internet. La control and internal control are essential.
Vigilance in B2B and B2C contractual relations
Every stage in the contractual relationship can be a source of risk. During negotiations, information misleading may be communicated. During performance, the quality or quantity of the goods or services delivered may not correspond to the commitments made. It is therefore necessary to draw up clear contracts, to check the quality and quantity of the goods and services delivered, and to ensure that they comply with the contract.legal information provided by the partners (such as their company address) and to ensure the conformity of services received or delivered. Vigilance is required both in relations with suppliers (B2B) and with end customers (B2C), particularly in the case of a buy online.
Quality control and product compliance
Internal quality control technique is essential, particularly for companies that manufacture or distribute products. The aim is to ensure that products or services placed on the market comply with the applicable standards (safety, composition, labelling) and correspond to the descriptions given. Traceability procedures can be useful for rapidly identifying the origin of a problem in the event of breach or alert by a consumer.
Risks relating to commercial and advertising practices
The company's communication, in particular the misleading advertising and offers from promotion (e.g: false discount), must be fair and truthful. Claims about product or service characteristics, prices or comparisons with competitors must be accurate and justifiable. The misleading commercial practices or abusive are specifically punishable under the Consumer Code (articles L. 121-2 et seq.) and may form part of the offence of deception. The DGCCRF warns regularly against this type of fraud on its website or via the ministry's social networks of theEconomy and Finance.
What should you do if you suspect or are accused of fraud?
Finding yourself suspected or accused of commercial fraud is an unsettling situation that can represent a serious threat to your business. threat serious and have rapid and serious consequences for the company and its managers managers.
The importance of a rapid, structured response
Ignoring an internal alert or complaint consumera payment dispute or a summons from the authorities (DGCCRF, French Competition Authority) would be a mistake. It is necessary to answer quickly: collect internally all information relating to the alleged offences (contracts, purchase orders, certificates of conformity, email exchanges, etc.), card customer, etc.), identify the processes and people involved within theorganisationand assess the materiality and potential seriousness of the facts. A rapid internal investigation can help to understand the situation and anticipate the consequences. administrative or judicial.
The role of the lawyer in crisis management and defence
From the very first suspicions or accusations, you are strongly advised to contact a lawyer specialising in business criminal law and consumer law. He or she can play a decisive role on a number of levels: analysis legal of the situation, assistance during investigations (searches, hearings), definition of an appropriate defence strategy, possible negotiation with the authorities (DGCCRFand representation before the courts if necessary. L' assistance of a commercial fraud lawyer is a major asset for protection the interests of the company and its management.
Investigation procedures and penalties (overview)
Surveys in in the fight against fraud can be carried out by DGCCRFThey have wide-ranging investigative powers (access to premises, seizure of documents, taking of samples) and the right to take legal action. national competence. They may lead to proceedings administrative (injunctions, administrative fines) or to refer the case to the Public Prosecutor for criminal prosecution. Penalties for deception or falsification can range up to several years' imprisonment and a fine of hundreds of thousands of euros (or even a life sentence). figure calculated on the annual sales for legal entities), not to mention additional penalties (posting of the conviction, various bans). Visit consumer can also report a problem via the SignalConso platform (available on signal.conso.gouv.fr), a public service managed by DGCCRF. To stay informed, follow the DGCCRF on social networks.
Navigating the complex landscape of business regulations requires constant vigilance and a clear understanding of the risks. If your business is faced with a potential fraud situation, whether as a victim or an accused, swift and informed action is required. Do not hesitate to contact our firm to discuss your specific situation and determine the best approach to defend your interests.
Frequently asked questions
What is the difference between deception and falsification?
The aim of deception is to mislead as to the qualities or characteristics of a good or service in the context of a contract, whereas falsification involves the physical alteration or concealment of the true nature of a good, often food.. It is a type of fraud distinct.
Can a simple mistake be classified as fraud?
No, offences such as deception or falsification require proven fraudulent intent; a simple involuntary error does not generally constitute a criminal offence, even though it may give rise to civil liability.. You need a misleading element intentional.
What are the first steps if my company is accused of fraud?
It is essential not to ignore the accusation, to gather the relevant internal information (contracts, communication with the consumer) and immediately contact a lawyer to analyse the situation and define the best defence strategy.
How do you prove deception or falsification?
Proof can be based on contractual documents, product expert reports, witness statements, material findings during inspections (by the DGCCRF for example), or any evidence of material wrongdoing and fraudulent intent.. Le alert a consumer on SignalConso can also initiate an investigation.
What are the time limits for taking legal action (statute of limitations)?
In the case of torts such as deception or falsification, the limitation period for the action is the same as that for fraud. public is generally 6 years from the day on which the offence was committed or the day on which it was discovered if it was concealed. Sources and related content
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