The company director is personally responsible for compliance with the regulations

If you are a company director, you should know that if you have not set up a delegation of authority, you may be held criminally liable for offences in which you did not personally take part. 

Unfortunately, it is not uncommon for company directors to be found personally guilty of unintentional injury or manslaughter, caused by a failure to comply with regulations relating to worker safety.

The manager has the duty to ensure compliance with these regulations and risks, in the absence of such compliance, a criminal sanction which may be a fine, a prison sentence, a ban on managing the company, etc.

Indeed, and again recently, a company director was sentenced to a three-month suspended prison sentence and a fine of 1,000 euros on this basis (Cass. Crim. November 8, 2005 n° 04-87.304). In this case, an employee died after falling from a ladder on a construction site. In what way could the manager be responsible? The judges considered that a scaffolding should have been used by the employees given the height to carry out the work. In fact, in the absence of such a device, they considered that the manager had not sufficiently assessed the specific risks of the work site and his failures were the direct cause of the employee’s death.

Putting in place a delegation of powers can allow you to escape the sanction

In fact, and this should be seen as a real reason for exonerating yourself from criminal liability, the law authorizes you to delegate part of your powers to one or more of your employees (in terms of health and safety, the environment, etc.).

This delegation of powers meets very specific requirements. This is why it is essential to be particularly vigilant when drafting it.

How to set up a delegation of powers ?

What are the conditions of validity ?

• The existence of a written document is essential. You will be able to use it against the employee in the event of a litigation.
• The delegation must have been made to an employee placed under your hierarchical authority.
• The actual powers must have been transferred to the employee in the areas concerned. The delegation must be precise and the employee must have the necessary skills, authority and means. If he cannot give orders to the employees, the delegation of powers will be worthless.
• The employee must expressly accept the delegation of authority, after having fully understood the issues involved.

For example, I refer you to a case in which the president of a company prosecuted for counterfeiting was acquitted, because of the existence of a delegation of powers that he had granted to the director in charge of the commercial sector of clothing, « competent and invested with the necessary authority » in this sector (Cass. Crim, Mars 21, 1993, n° 90-84.931).