In a recent judgment, the Criminal Division of the French Supreme Court (Cour de cassation) pursues a judge-made line of case law favouring the postponement of limitation by accepting, in fraud (escroquerie) cases, a conflation between the scheme forming a constituent element of the offence and the scheme intended to conceal it (Cass. Crim, 25 March 2026, n°24-80.607).
According to the SSMSI, the statistics department attached to the Ministry of the Interior, fraud and payment fraud recorded by the national police and gendarmerie caused 250,900 victims in 2016 compared with 411,700 in 2023, an average increase of +7.3% per year. In the face of this worrying criminological reality, the question of the limitation regime applicable to this offence is of real importance.
Defined by Article 313-1 of the French Criminal Code, fraud consists in using fraudulent means, such as fraudulent schemes, in order to deceive a person and induce them, to their detriment or to that of a third party, to hand over funds or any other property. In principle, this offence is time-barred after six years from the day on which it was committed, pursuant to Article 8 of the French Code of Criminal Procedure. The Law of 27 February 2017 did, however, enshrine the concept of the concealed offence (infraction dissimulée) in Article 9-1 of the Code of Criminal Procedure, which makes it possible, subject to an absolute cut-off of twelve years, to postpone the start of the limitation period for public prosecution to the day on which the offence came to light and could be established in conditions allowing a prosecution to be brought.
In this case, the administrative and financial manager of a company issued false invoices to justify funds that had been wrongly handed over to him, so that the facts remained concealed until he left the company.
Convicted of fraud and forgery by the Dijon Court of Appeal, the defendant appealed to the French Supreme Court. In his first ground of appeal, he argued that the facts were time-barred and that, in finding that the offence had been concealed, the Court of Appeal had breached Article 9-1 of the Code of Criminal Procedure, first, by relying on the fact that the facts had not been detected by the accountant and, second, by holding that the defendant “was able to make entries in the accounts with apparent supporting documents” without establishing a scheme intended to prevent discovery of the offence.
The question was therefore whether one and the same scheme could not only constitute a constituent element of the offence, but also be regarded as an act of concealment allowing the start of the limitation period for public prosecution to be postponed.
The Criminal Division of the French Supreme Court answered in the affirmative in a judgment of 25 March 2026. It held that “there is nothing to prevent material acts forming part of the commission of the fraud from also being regarded as schemes establishing its concealment, provided that they were committed by the perpetrator of the offence and were intended to prevent its discovery ”, thus finding that “the defendant deliberately carried out a specific scheme in order to prevent discovery of the fraud”. The Court also partially quashed the decision on the second ground concerning the penalty of confiscation, a point that will not, however, be addressed in this commentary.
By this decision, the Criminal Division recognises that the Law of 27 February 2017 applies to the offence of fraud, including to acts committed before it came into force provided that the limitation period had not expired (I). Accordingly, any scheme intended to conceal the offence may postpone the start of the limitation period, regardless of whether that scheme is also a constituent element of the offence (II).
I. Retroactive application of the concept of concealment to the offence of fraud
Before ruling on the characterisation of the schemes at issue, the Criminal Division had to determine whether the Law of 27 February 2017, which enshrined the concepts of the inherently hidden offence (infraction occulte) and the concealed offence in Article 9-1 of the Code of Criminal Procedure, applied to the offence of fraud and, a fortiori, to acts committed before it came into force.
In the present judgment, the defendant relied on the limitation of the fraud offence with which he was charged, which depended on the application of one of these concepts allowing the start of the limitation period for public prosecution to be postponed to the day on which the offence came to light and could be established in conditions allowing a prosecution to be brought or pursued.
On the first point, the Court gives a nuanced answer in that, while it accepts that the concept of concealment may apply to the offence of fraud, it refuses to characterise this offence as inherently hidden, noting that the constituent elements of fraud do not prevent the victim or the judicial authority from becoming aware of its commission, in particular because “the handover is necessarily known to the victim”.
This clarification is decisive from a procedural standpoint since, by refusing to treat this offence as inherently hidden, the Court rules out any reversal of the burden of proof: if limitation is raised, it is for the prosecution to establish the existence of an act of concealment, without being able to rely on a presumption drawn solely from the nature of the offence.
It is also worth noting that this solution contrasts with the one adopted for money laundering, whose constituent elements, namely false justification and concealment, have been recognised as inherently hidden (Cass. Crim., 11 September 2019, n°18-83.484).
On the second point, the Court accepts that the aforementioned Law of 27 February 2017 may apply to acts committed before it came into force, provided that the offence was not already time-barred when it came into force. This solution, already established, is logical. It seeks to preserve a degree of legal certainty so as to avoid “reviving” prosecutions that could no longer be brought because of the limitation of public prosecution. The absolute cut-off of twelve years, laid down in Article 9-1 of the Code of Criminal Procedure, is thus the only limit placed on the postponement of limitation.
II. The conflation of the constituent element of fraud with the specific act of concealment
Having accepted that the Law of 27 February 2017 applied to the case in point, the Criminal Division had to rule on the central question of whether one and the same scheme could simultaneously constitute the constituent element of the offence of fraud and the specific act of concealment within the meaning of Article 9-1 of the French Code of Criminal Procedure.
The Court answers in the affirmative, subject to two cumulative conditions: the act relied on must have been carried out by the perpetrator of the offence and it must have been intended to prevent its discovery.
It is noteworthy that the Criminal Division appears keen to present this new decision as following in the footsteps of its case law prior to the 2017 Law, under which postponement of the limitation period was accepted where the fraudulent schemes constituted a single criminal operation or continued over a long period forming an indivisible whole that led to successive handovers (Cass. Crim., 26 September 1995, n°94-84.008; Cass. Crim., 9 May 1972, n°71-90.996).
Here, however, it marks a notable step forward by holding, for the first time, that one and the same act may both constitute a constituent element of the offence and reflect the perpetrator’s intention to prevent its discovery.
While the solution will no doubt be debated by commentators and relied on by practitioners, the fact remains that in this case, and in the absence of any other positive material act attributable to the perpetrator, the Criminal Division had no choice but to rely on the preparation of the false invoices, which completes the offence of fraud, to justify postponing the start of the limitation period.
In so doing, it conflates the constituent element of the offence of fraud with the specific act of concealment within the meaning of Article 9-1 of the Code of Criminal Procedure.
The ruling should have real consequences in practice since, very often, fraudulent schemes are by their very nature intended to lend force and credibility to the lie designed to deceive the victim and to conceal the offence committed against them. It is therefore likely that this quasi-automatic postponement of the start of the limitation period will be relied on in many situations.
Although the French Supreme Court could have opted for a more restrictive approach by requiring that the scheme be intended to prevent discovery of the offence, it must be noted that by upholding the reasoning that the defendant “prepared false invoices to justify the payments he had wrongly obtained, so that the facts remained concealed until he left the company ”, without establishing a distinct and independent intention to conceal, the Supreme Court in fact leaves room for a broad interpretation of this solution.
The concealed nature appears to result less from a deliberate intention to prevent discovery of the offence than from the fraudulent schemes themselves.
Subsequent judgments will necessarily confirm or refute this analysis by clarifying the contours of these uncertainties. Such clarification appears all the more necessary given that the situations likely to arise in practice will be many and varied in an era of digital fraud and complex financial arrangements.
***
Summary: The French Supreme Court accepts that the Law of 27 February 2017 applies to the offence of fraud, including to acts committed before it came into force, provided that the limitation period has not expired. While refusing to characterise this offence as inherently hidden, it nevertheless establishes that one and the same material act forming part of the fraud may also constitute a scheme capable of establishing the concealed nature of the offence and thus, under Article 9-1 of the Code of Criminal Procedure, of postponing the start of the limitation period for public prosecution to the day the offence was discovered.
