Business criminal law, in the broad sense, follows a pendulum movement that some will regard as ambivalent and which seems driven by the search for a balance between the “effective punishment” of these offences and the wish not to paralyse economic activity and political action.
In this respect, recent developments in business criminal law reveal this paradoxical movement: while the legislature is relaxing certain offences and regulatory obligations, the public prosecutor’s office remains notably firm in the fight against money laundering. The Law of 22 December 2025 establishing a statute for local elected officials illustrates this trend by substantially reforming the offence of unlawful taking of interest (prise illégale d’intérêts) and by adjusting the due diligence obligations of professionals subject to anti-money laundering rules. At the same time, the judicial public interest agreement (convention judiciaire d’intérêt public) concluded on 2 December 2025 with Banco Santander, for an amount of €22.5 million, is a reminder that breaches of anti-money laundering obligations continue to be heavily penalised.
I. Narrowing the scope of unlawful taking of interest: a refocus on genuine conflicts of interest
Article 30 of the Law of 22 December 2025 significantly overhauls the offence of unlawful taking of interest (prise illégale d’intérêts) under Article 432-12 of the French Criminal Code. This reform, directly inspired by the Vigouroux report submitted to the Prime Minister on 13 March 2025, reflects a desire to refocus the offence on genuinely problematic conflicts of interest.
The first change concerns the very nature of the prohibited interest. Henceforth, only private interests fall within the scope of the offence. This clarification puts an end to questions about overlaps between two public interests, which no longer constitute the offence of unlawful taking of interest. The definition of conflict of interest set out in Article 2 of the Law of 11 October 2013 on transparency in public life has been amended to the same effect. This change appears consistent with the primary purpose of the offence, which is to punish elected officials or public servants who use their office for their own personal interests or those of people close to them.
More substantial still, the legislature has changed the degree of intensity required of the conflict of interest. Whereas the Law of 22 December 2021 required the interest to be “liable to compromise” the impartiality of the public decision-maker, the new version of Article 432-12 requires that the interest actually “impair” his or her impartiality, independence or objectivity. This shift from a potential test to an actual test significantly increases the burden of proof on the prosecution. It will no longer be enough to establish the existence of an abstract conflict of interest[1]; it will be necessary to demonstrate in concrete terms that the elected official or public servant disregarded his or her duty of impartiality when making the decision. This requirement fundamentally changes the nature of the offence, which until now punished a situation rather than conduct.
The mental element of the offence has also been clarified. Unlawful taking of interest must now be committed “knowingly”. Although this wording may seem redundant given the requirement of intent already inherent in any offence, it no doubt underlines the legislature’s wish to exclude situations in which the elected official or public servant acted in good faith, unaware of the conflict of interest in which he or she found himself or herself.
Lastly, the new third paragraph of Article 432-12 introduces a justification where the public decision-maker could not have acted otherwise in order to meet an overriding reason of public interest. The parliamentary debates cite the example of a mayor who, faced with a disaster, urgently awards a contract to a business run by a relative, that business being the only one able to intervene quickly. This exception reflects a concern for pragmatism, which is particularly welcome for local elected officials in small municipalities facing emergencies, but which may prove harder to apply in other situations.
The practical implications of this reform go beyond the prosecution of elected officials and public servants alone. Businesses that contract with public bodies must also adjust their assessment of the criminal risk weighing on their activities and their counterparties, since they may be prosecuted for complicity in unlawful taking of interest. The reduction in criminal risk resulting from the reform justifies updating the risk maps of the businesses concerned. Furthermore, under the principle that more lenient criminal laws apply retroactively, enshrined in Article 112-1 of the French Criminal Code, these changes should benefit persons prosecuted for acts committed before 24 December 2025 whose cases have not yet been finally decided.
II. The Banco Santander CJIP: when late detection of money laundering constitutes the breach
The judicial public interest agreement (convention judiciaire d’intérêt public, CJIP) concluded on 2 December 2025 between the Paris public prosecutor’s office and Banco Santander illustrates the continued firmness of the prosecution in the fight against money laundering, even where the bank itself was the one that brought the facts to light.
The circumstances of the case are unusual. In February 2011, Banco Santander filed a complaint with the Paris public prosecutor to report fraudulent practices that it attributed to the employees of its Paris representative office, BPI Paris. It was following a physical assault on the head of that office by clients, in June 2010, that the bank commissioned an internal audit. The audit report, delivered in January 2011, revealed that between 2003 and 2010, eighty-seven Spanish accounts had been operated fraudulently, being used to launder the proceeds of various offences, including tax fraud, misappropriation of funds and undeclared work. The clients holding these accounts were able to pay into their Spanish accounts cheques intended for companies or income not declared to the French tax authorities, to receive transfers in exchange for cash deposits made with BPI Paris, and to make investments or property acquisitions without having to justify the origin of the funds.
The bank attributed the late detection of these practices to the fact that its Paris employees had systematically circumvented the internal procedures forming part of its anti-money laundering framework. These circumventions included failing to seek the mandatory approval of the head office in Madrid when opening accounts, completing know-your-customer forms inaccurately and without verification, sending cheques directly to the Spanish branches without passing them through the branch’s French account, and accepting cash deposits without any accounting record. The bank also stressed that the fraudulent scheme relied on family and friendship ties between employees of BPI Paris and two people working in three branches located in Vigo, Spain, where seventy-five of the eighty-seven accounts at issue were domiciled.
Placed under formal investigation (mise en examen) in April 2017 for aggravated laundering of offences and unlawful banking solicitation, Banco Santander argued that it was unaware of the system set up at BPI Paris, that it had never given instructions authorising or encouraging it, and that it had reacted immediately on discovering the facts by commissioning an audit and dismissing the employees involved. The bank stressed that it had always complied with the anti-money laundering legislation in force in France and Spain, and that its framework complied with the obligations applicable at the time.
The prosecution took a different view, however. It considered that the failure to detect, over eight years, transactions carried out without economic justification, unrelated to customer information, sometimes for substantial amounts, despite inspection visits both at BPI Paris and at the Spanish branches, revealed “at the very least” a manifest lack of vigilance with regard to anti-money laundering obligations, amounting to a breach. This wording suggests that the prosecution probably had further evidence justifying a criminal characterisation of money laundering, beyond a mere administrative breach.
This CJIP offers several important lessons. First, it confirms that the fact that the bank itself brought the facts to light is not enough to avoid any penalty where the failings of the internal control system are manifest. The bank probably did benefit from this de facto mitigating circumstance, but it did not escape a fine of €22.5 million. Second, it illustrates the delicate distinction between a bank’s criminal liability for money laundering and its liability for a mere breach of its due diligence obligations. In principle, only administrative and disciplinary penalties apply to failings in the anti-money laundering framework. But a bank may be criminally prosecuted for money laundering where its organs or representatives carried out transactions on funds which, in view of the information available to them, they could not have been unaware derived from a criminal offence, as the Criminal Chamber of the French Supreme Court (Cour de cassation) reiterated in its judgment of 19 June 2024. The prosecution’s cautious use of the words “at the very least” in the CJIP suggests that the dividing line between these two regimes was no doubt the subject of negotiation between the parties.
Lastly, this case highlights the importance for banks of implementing controls that are effective and not merely formal. The bank’s argument that its internal procedures had been systematically circumvented by its employees did not convince the prosecution, which considered that such circumventions should have been detected much earlier. This position is a reminder that the criminal liability of a legal entity is not limited to laying down internal rules, but extends to their effectiveness and to the implementation of genuinely operational controls. In setting the amount of the fine, the prosecution did take into account how long ago the facts occurred, at a time when European anti-money laundering regulation was less stringent, the fact that the bank had since strengthened its framework, and the absence of any prior record. But the seriousness of the facts, committed over several years within a bank, and the size of the business justified a significant penalty.
III. Relaxation of enhanced due diligence measures: an adjustment according to risk
The same relaxation observed in relation to unlawful taking of interest can be found in Article 36 of the Law of 22 December 2025, which amends the regime of enhanced due diligence measures in the fight against money laundering.
Under Article L. 561-10 of the French Monetary and Financial Code, regulated professionals must, in addition to the usual checks on the customer’s identity and the nature of the business relationship, carry out additional measures in certain high-risk situations. These include cases where the customer is a politically exposed person, where the product or transaction favours anonymity, or where the transaction is carried out with a person established in a listed country. These additional measures, set out in Articles R. 561-20-2 et seq. of the same code, consist mainly of specific checks, for example ensuring that the transaction is consistent with the customer’s professional activity or assets.
The reform adds a new paragraph 5 to the aforementioned Article L. 561-10, requiring professionals to adjust the intensity and frequency of enhanced due diligence measures according to the risk profile of the customer, its beneficial owner and the beneficiary of the life insurance or capitalisation contract. This change may come as a surprise in a law establishing a statute for local elected officials. The parliamentary debates in fact show that the original bill sought to limit the requests made by banks to politically exposed persons, a category that was to include certain elected officials of municipalities with more than fifty thousand inhabitants. The original text thus provided for the Prudential Supervision and Resolution Authority (ACPR) to draw up an exhaustive list of information to be provided and to supervise the implementation of the additional measures for these persons.
The Senate, however, took the view that this mechanism risked being interpreted as strengthening the ACPR’s supervision, contrary to the aim pursued. It therefore replaced the original text with a paragraph whose purpose is to limit requests for information where the customer presents a low risk of money laundering. The text as passed thus goes well beyond the particular situation of local elected officials and establishes a general principle of proportionality in the application of enhanced due diligence measures.
The National Assembly initially deleted this paragraph, considering it unnecessary insofar as it merely restated the spirit of the directives on combating money laundering and terrorist financing. It is true that Article L. 561-4-1 of the French Monetary and Financial Code already states that due diligence obligations must be applied according to the risks presented by the regulated entity’s activity. Moreover, this risk-based approach is set to be strengthened when European Regulation 2024/1624 becomes applicable on 1 July 2027. But, having ultimately been reinstated in the text after the shuttle between the two chambers, this new paragraph expressly establishes the possibility for professionals to adjust their enhanced due diligence measures.
This legislative development is part of a general trend towards rationalising anti-money laundering obligations, aimed at focusing control efforts on genuinely high-risk situations. It also reflects the criticism voiced by certain local elected officials, who felt that they were subject to disproportionate requests for information from their banks merely because of their status as politically exposed persons. For regulated professionals, this reform offers greater room for manoeuvre in calibrating their due diligence frameworks, provided they can justify their assessment of their customers’ risk profile. It also requires greater traceability of that assessment, which must be capable of being produced in the event of an inspection by the ACPR or the judicial authorities.
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Recent developments in business criminal law point to a legislative movement towards relaxing certain offences and regulatory obligations, with a stated concern for pragmatism and proportionality. The reform of the offence of unlawful taking of interest and the introduction of an express adjustment of enhanced due diligence measures are part of this approach. But this development must not obscure the firmness maintained by the prosecution in conducting its criminal policy against economic and financial offences. This is evidenced by the prosecution’s stance in negotiating judicial public interest agreements, as the Banco Santander case illustrates. Businesses and financial institutions must therefore continue to pay close attention to their compliance frameworks, particularly as regards money laundering, where the late detection of fraudulent practices does not exempt them from liability. The effectiveness of internal controls remains the decisive criterion in the criminal courts’ assessment of whether legal entities have complied with their due diligence obligations.
[1] The former wording provided that the conflict had to be “liable” to have such consequences.
