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International criminal investigations. Arrest warrants and extradition

Crossing borders. Coordinating the defence. Protecting directors’ mobility.

An investigation opened abroad never remains foreign to the company for long.

A subsidiary receives a request to produce documents. A director is arrested while travelling. Accounts are frozen in several countries. A foreign authority asks to interview employees in France. An arrest warrant suddenly threatens a manager’s freedom to travel.

In these situations, borders multiply the proceedings, the competent authorities and the risk of contradiction. They must not fragment the defence.

Vouland Avocats assists companies, their directors and their managers when their criminal exposure extends beyond French territory: cross-border investigations, mutual legal assistance, European investigation orders, proceedings conducted by the European Public Prosecutor’s Office, European arrest warrants and extradition requests.

Our role is to identify immediately the proceedings under way, coordinate counsel in the different States and build a common strategy to protect people, information and business continuity.

When an investigation crosses borders

An international criminal case does not necessarily begin with an arrest.

It may arise from a search of a foreign subsidiary, a request sent to the French head office, the freezing of a bank account, the transfer of evidence or the questioning of an employee by a foreign authority.

For the company, several risks then overlap:

proceedings conducted simultaneously in different States;
different criminal classifications and procedural rules;
statements that may be used in several jurisdictions;
the international transfer of sensitive documents;
seizures of assets or data;
the arrest of a director while travelling;
interests that may diverge between the company, its subsidiaries and the individuals concerned;
media exposure that may quickly go beyond the national context.

The first priority is to draw up a precise map of the situation: which authorities are involved, on what legal basis, for what facts, against whom and in which States?

One case. Several jurisdictions. One strategy.

International proceedings require immediate coordination.

An explanation given in France may be passed on abroad. A document handed over in one State may feed into another set of proceedings. A position defended by a subsidiary may weaken that of the group or one of its directors.

We act to:

identify the legal basis and scope of foreign requests;
analyse the regularity of acts carried out in France;
organise the preservation and controlled production of documents;
prepare directors and employees before any interview;
coordinate the defence with the lawyers acting in other countries;
prevent contradictions between the different proceedings;
examine the possibilities of challenging, limiting or postponing measures;
integrate the reputational, financial and operational consequences into the criminal strategy.

International coordination does not mean placing several national defences side by side. It requires understanding how each decision taken in one country may be used in the others.

Mutual legal assistance and the European investigation order

Judicial authorities may request the execution in France of many measures: interviews, searches, seizures, interceptions, obtaining bank data or the transfer of documents.

Within the European Union, these requests are made in particular through the European investigation order. This allows the authority of one Member State to request the execution in another State of a measure intended to obtain evidence.

When a French company is concerned, we analyse:

the authority that issued the request;
the facts and offences concerned;
the persons and establishments concerned;
the exact nature of the measures requested;
the scope of the documents or data sought;
the rules applicable to their execution in France;
the remedies actually available.

We also ensure the protection of the rights of the defence and of confidential information, taking into account the rules specific to each jurisdiction.

Investigations by the European Public Prosecutor’s Office

The European Public Prosecutor’s Office (EPPO) investigates and prosecutes offences affecting the financial interests of the European Union.

Companies may be concerned in particular in cases relating to:

the use of European grants or funding;
contracts financed by the European Union;
cross-border VAT fraud;
corruption affecting the EU’s financial interests;
laundering the proceeds of these offences;
schemes involving several companies or several Member States.

These investigations are conducted within a European framework, but rely largely on the investigative powers provided for by national law. Their decentralised nature requires a command of both French procedure and the organisation of the EPPO.

We assist the company from the first investigative measures in order to identify the authorities involved, preserve its rights and coordinate its response in the various States concerned.

European arrest warrant: when a director’s mobility becomes a criminal risk

The European arrest warrant allows a Member State of the European Union to request the arrest and surrender of a person sought for prosecution or to serve a sentence.

It targets an individual, not the company itself. Its consequences may nevertheless directly affect the organisation: the sudden unavailability of a director, disruption of governance, seizure of professional equipment, media exposure or the opening of parallel proceedings against the company.

The arrest may take place during a trip, a check or when an alert in the European databases is executed.

We examine without delay:

the identity of the person sought;
the exact purpose of the warrant;
the facts, their period and their legal classification;
the conditions under which double criminality must be verified;
whether there is a final decision or proceedings concerning the same facts;
the mandatory or optional grounds for refusal;
compliance with the speciality principle;
guarantees relating to fundamental rights;
the personal and professional situation of the person sought;
the conditions for a possible postponed or conditional surrender.

The procedure takes place before the investigating chamber and is subject to particularly short time limits. The first statements, in particular on consent to surrender, must therefore be prepared with the utmost care.

Extradition: defending a director sought by a foreign State

Outside the surrender mechanisms applicable within the European Union, a State may request France to extradite a person prosecuted or convicted on its territory.

The procedure includes a judicial phase before the investigating chamber and, where its opinion allows, an administrative phase that may lead to an extradition decree.

The defence may examine in particular:

the applicable international convention;
the status and regularity of the request;
the double criminality of the facts;
limitation periods;
the nationality of the person sought;
the possibly political nature of the request;
the risk of a sentence or treatment contrary to fundamental rights;
the guarantees offered by the requesting State;
compliance with the speciality principle;
the existence of competing proceedings in several countries.

General difficulties in the requesting State are not always enough to prevent extradition. The risk relied on must be established, individualised and documented. The defence must therefore be built very early, on the basis of precise information about the foreign proceedings, the conditions of trial or detention and the personal situation of the person concerned.

The company and its director do not always form a single defence

When a director is personally sought, the interests of the company and their own may at first seem identical.

They are not necessarily so.

The company may be regarded as implicated, a victim, a holder of evidence or a mere third party to the proceedings. It may have to respond to a foreign authority while protecting its own interests. Some facts may be attributed to an individual decision; others to the organisation or internal procedures of the group.

It is then necessary to determine:

who is personally targeted;
which entity holds the documents;
who can decide to disclose them;
whether the interests of the individuals and the legal entities remain compatible;
whether separate counsel should be appointed;
how to organise exchanges between the different defences.

This clarification protects both the company and the director. It prevents a joint defence, decided too hastily, from later becoming a source of difficulty.

The first hours: organise before explaining

When a warrant, an arrest or a foreign request is discovered, the temptation is often to respond immediately to clear up a misunderstanding.

In international criminal matters, an improvised explanation may become evidence in several countries.

The first reflexes must be methodical:

obtain a copy or the precise references of the request;
identify the issuing authority and the State concerned;
check whether there is a warrant, an alert or parallel proceedings;
suspend risky travel if necessary;
preserve relevant documents and data;
avoid any destruction, modification or uncontrolled transfer;
assemble a team bringing together French and foreign counsel;
prepare any interview or production of documents;
organise internal and external communication.

The aim is not to slow down the proceedings artificially. It is to prevent a company from being subjected to several investigations without an overall view.

White-collar criminal law

Preventing international criminal risk

For companies operating in several countries, the mobility of people and data must be built into criminal risk prevention.

We can help groups put in place protocols covering in particular:

receiving a request from a foreign authority;
what to do if a subsidiary is searched;
the retention and international circulation of documents;
preparing managers who travel to sensitive areas;
coordination between head office, subsidiaries and local counsel;
protecting confidential information;
managing an arrest or seizure abroad;
training legal, finance and compliance departments.

An international investigation cannot be improvised. Its management, however, can be prepared.

A foreign company may be criminally liable for its activity in France

Having its registered office abroad does not keep a company out of reach of the French criminal courts.

Where an activity is carried on in France, an offence is committed there or a decision taken abroad has effects there, the foreign company may be required to answer before the French courts.

The investigation will then seek to understand the reality of the organisation:

Where were the decisions taken?
Who actually had the power to decide?
Which organs or representatives acted on behalf of the company?
Did local managers have a delegation of authority?
Did the disputed practice result from an individual initiative or from a policy set by the group?
Did the French entities have genuine autonomy?

These questions are decisive. Under French law, the criminal liability of a legal entity requires that an offence has been committed on its behalf by one of its organs or representatives.

This identification is not a formality. It requires a precise reconstruction of decision-making channels, delegations, links between head office and subsidiaries and the role of operational managers.

But a company cannot organise opaque governance and then rely on the impossibility of identifying the decision-maker to escape all liability.

International organisation becomes a question of evidence

In international groups, responsibility does not always follow the official organisation charts.

A subsidiary may appear autonomous while the key decisions are taken by head office. Conversely, a local manager may bind the company if they actually have the necessary competence, authority and resources.

The criminal investigation therefore compares the declared organisation with how it really works:

delegations of authority;
minutes of corporate bodies;
approval channels;
exchanges between head office and subsidiaries;
internal procedures;
operational instructions;
banking and contractual powers;
reporting and line management control.

In an international case, these documents do not only describe governance. They may identify who decided, who controlled and, sometimes, who should have intervened.

Our role is to reconstruct this chain of decision-making before it is interpreted by the prosecuting authority.

Subsidiary, parent company and directors: distinguishing responsibilities

Belonging to the same group is not enough to make each company criminally liable for the acts of the others.

For each entity, it is necessary to determine:

the facts personally attributable to it;
the organ or representative who may have acted on its behalf;
the degree of autonomy of the subsidiary;
whether the parent company gave instructions;
the delegations actually exercised;
the interest in which the decision was taken.

This analysis may reveal diverging interests between the parent company, the subsidiary, the group’s director and local managers.

A single strategy is only appropriate if their positions remain compatible. Otherwise, separate defences must be organised without breaking the international coordination of the case.

Prevention: making responsibilities clear

Preventing international criminal risk requires being able to explain, with supporting documents, how the company takes its decisions.

We help groups review:

their delegations and sub-delegations of authority;
the allocation of powers between head office and subsidiaries;
the identification of managers by country or by business line;
their approval and control procedures;
the traceability of sensitive decisions;
their protocols for responding to French and foreign authorities.

Clear governance does not guarantee that there will be no prosecution. It does, however, prevent opacity, imprecision or inconsistency in the organisation from themselves becoming incriminating arguments.

Internal investigations. Criminal law audits. Corporate training

Our areas of practice

Vouland Avocats acts in particular in cross-border cases involving:

international corruption and influence peddling;
fraud, money laundering and financial offences;
tax or customs fraud;
the use of European funds or grants;
investigations by the European Public Prosecutor’s Office;
the criminal liability of foreign companies or subsidiaries;
international criminal seizures and protective measures;
mutual legal assistance requests and European investigation orders;
European arrest warrants;
extradition proceedings.

The firm acts from Marseille and Paris, in coordination with foreign lawyers chosen according to the country, the procedure and the issues at stake.

Corruption. Conflicts of interest. Criminal risks in business relationships

Experience in international surrender

The firm has in particular handled:

the defence of a Russian national subject to an extradition request from the Russian Federation for historic criminal offences;
the defence of a French national sought by the Italian judicial authorities under a European arrest warrant issued at the request of the Genoa anti-mafia prosecutor’s office.

These proceedings require precise knowledge of surrender mechanisms, but also the ability to document the personal situation of the person sought and to coordinate the French defence with the proceedings abroad.

Frequently asked questions

What is the difference between a European arrest warrant and extradition?

The European arrest warrant governs the judicial surrender of a person between Member States of the European Union, as well as within certain similar frameworks. The procedure is mainly judicial and subject to short time limits.

Extradition concerns in particular requests made by States outside these mechanisms. In France, it involves a judicial phase and then, if the opinion given allows, an administrative phase.

Can a company be the subject of a European arrest warrant?

No. A European arrest warrant or an extradition request targets an individual.

The company may, however, be directly affected if that person is a director or a key manager. It may also be concerned by requests for documents, searches, seizures or parallel criminal proceedings.

Can a French director be surrendered to another State?

French nationality does not, in principle, prevent the execution of a European arrest warrant.

It is treated differently in conventional extradition proceedings. The answer then depends on French law, the date on which nationality was acquired and the applicable treaty framework. Each situation must be examined individually.

What is double criminality?

It means checking that the facts alleged also constitute an offence in the State responsible for executing the request.

Under the European arrest warrant, this check is waived for certain categories of offences where the legal conditions are met. Where it remains necessary, the legislation of the two States does not have to be identical: the analysis focuses mainly on the facts themselves and whether they are criminally punishable.

What is the speciality principle?

This principle limits, under certain conditions, prosecution or the enforcement of a sentence to the facts for which the person was surrendered.

Its application depends on the procedure, any consent given by the person sought and the authorisations requested from the State that carried out the surrender.

Can fundamental rights prevent surrender?

Yes, in particular where there is a real and personal risk of inhuman or degrading treatment.

However, merely invoking the general situation in a country is not necessarily enough. The risk must be demonstrated on the basis of precise, current and individualised evidence. Additional information or guarantees may also be requested from the requesting State.

What should a director do on learning that they are wanted abroad?

They should avoid any unprepared travel and consult a lawyer immediately. It is necessary to identify the authority behind the search, the nature of the alert, the facts concerned and the States in which an arrest could take place.

A spontaneous approach or a trip intended to “sort the situation out” may lead to an arrest before a defence strategy has been organised.

Must a foreign request for documents be executed immediately?

Not without having identified its legal basis, its author, its scope and the applicable rules.

The company must preserve the material concerned, but also check the conditions for its transfer, confidentiality obligations, the rights of the defence and any available remedies. An overly broad or disorganised response may feed several sets of proceedings.

Can the company and the director have the same lawyer?

This is possible where their interests are compatible.

A prior analysis is nevertheless essential. If one seeks to attribute the facts to the other, if the company considers itself a victim, or if their positions are likely to diverge, separate defences may become necessary.

When should a lawyer be consulted?

As soon as a foreign request, an alert, a summons or a risk of arrest is discovered.

In international criminal matters, time limits are short and the first decisions may determine the rest of the proceedings.

Can a foreign company be prosecuted in France?

Yes. Having its registered office abroad does not, on its own, prevent French criminal law from applying.

The jurisdiction of the French courts depends in particular on where the facts were committed, their effects in France, the rules specific to certain offences and the applicable treaties.

If the legal entity is prosecuted, it must then be established that an offence was committed on its behalf by one of its organs or representatives. The analysis therefore focuses on how the group really works, its decision-making channels and the powers actually exercised.

Does the absence of an identified representative in France protect the company?

No, not necessarily.

The judicial authorities will look for where the real decision-making power lay and who could bind the company. An international organisation cannot be used as a screen to make every decision-maker impossible to find.

In a case concerning a foreign company established in France, the Court of Cassation has notably accepted that judges may take into account the company’s conduct where it deliberately prevents its real decision-maker from being identified.

Is a parent company automatically liable for the acts of its subsidiary?

No. Each legal entity has, in principle, its own liability.

Membership of a group is not enough. It is necessary to establish which entity took the decision, on whose behalf the facts were committed and which organ or representative intervened.

The parent company may nevertheless be held liable if its own role in the facts is established or if it directly exercised the decision-making power concerned.

Our analysis

Tom Bonnifay commented in Lexbase Pénal on the Court of Cassation’s judgment in the Ryanair case concerning the identification of the organ or representative capable of engaging the criminal liability of a foreign company.

Read the analysis (in French): Responsabilité pénale de la personne morale : nul ne peut se prévaloir de sa propre turpitude.

Une entreprise étrangère est-elle responsable pénalement en France ? Retour sur l’affaire Ryanair

Coordinating the defence across borders

When proceedings become international, the company should not have to choose between its defence in France and its defence abroad.

It must build a strategy capable of holding up in both.

Vouland Avocats assists companies, their directors and their managers in handling cross-border investigations, mutual legal assistance requests, European arrest warrants and extradition proceedings.

Offices in Marseille and Paris. Acting throughout France and in coordination with foreign counsel.

Are you facing a foreign investigation, an arrest warrant or an extradition request?

Contact us for an initial confidential analysis of the situation.