Successive investigations in France following U.S. prosecutions and settlements have led to court challenges on the grounds of double jeopardy, a trend that will only increase as more countries scrutinize the same conduct in multijurisdictional investigations. Under Article 113-9 of the French Criminal Code (and Article 692 of the Code of Criminal Procedure), a French citizen cannot be prosecuted for crimes and misdemeanors (délits) committed outside France, nor can a foreigner if the offense involved a French victim, if the perpetrator has been tried abroad for the same facts and, if convicted, a sentence was served or is time-barred.

However, for offenses committed at least in part on French republic territory, French courts consistently have held that decisions rendered by foreign tribunals in connection with the same facts do not have res judicata effect in France. In 2013, the French Supreme Court (Cour de cassation) slightly tempered that principle by holding that any period of imprisonment spent abroad should be taken into consideration by the French criminal court at the sentencing stage.

In recent years, the broad interpretation of the scope of certain laws and regulations, especially in corruption, economic sanctions and money laundering cases, has increased the number of cases in which an individual or legal entity is prosecuted and possibly sanctioned twice for the same set of facts — especially in situations in which U.S. authorities have secured an NPA, DPA or guilty plea. This has led the Paris criminal court of first instance (Tribunal correctionnel) to revisit the above jurisprudence and decide that the ne bis in idem principle should in fact be enforced by French courts.

Comment