Answer from French anticorruption association Anticor related to the McDonald’s case.

From: Expertise juridique Anticor (a famous French anticorruption NGO) <expertisejuridique@anticor.org>
Subject: Re: Does Article 40 of the French Criminal Procedure Code apply to a member of the French Parliament?
Date received: September 27, 2019, 17:21 +0800
To: Vincent B. Le Corre

Dear Mr. Le Corre,

The Anticor team thanks you for your trust and interest in our association.

We have taken note of your question regarding the application of Article 40 of the Code of Criminal Procedure (CPP) to deputies of the National Assembly.

According to this article, “the public prosecutor receives complaints and denunciations and decides on the follow-up in accordance with the provisions of Article 40-1. Any constituted authority, any public officer or civil servant who, in the exercise of their functions, becomes aware of a crime or an offense is required to report it without delay to the public prosecutor and to transmit to this magistrate all the information, minutes, and documents related to it.”

The question remains as to what is a “constituted authority”?

The written question (QE) No. 08239 of the Senate of April 2, 2009, recalls that “The definition of constituted authority is not defined by the Code of Criminal Procedure”. It continues by specifying that “in common language, it refers to magistrates and senior officials vested with recognized power (…) It seems possible to consider that the term ‘constituted authorities’ includes representatives of the legislative, executive, and judicial powers whose prerogatives and relations have been defined by the Constitution of October 4, 1958.”

Therefore, “an elected official who, in the exercise of their functions, becomes aware of the commission of a crime or an offense, would therefore be required to notify the public prosecutor. It is important to specify that the Court of Cassation has had the opportunity to clarify that the prescriptions of Article 40, paragraph 2, of the Code of Criminal Procedure are not accompanied by any criminal sanction. While civil servants and magistrates may be subject to disciplinary sanctions for having failed to meet the obligation of denunciation of Article 40 of the Code of Criminal Procedure, it is different for elected officials (…)

Nevertheless, it must be remembered that, according to Article 434-1 of the Penal Code, the non-denunciation of a crime of which it is still possible to prevent or limit the effects constitutes an offense which could, where appropriate and subject to the provisions of Article 26 of the Constitution, lead to prosecution.”

I add to this response an article published on Dalloz on the occasion of the Benalla affair, which precisely recalls the state of current law: https://www.dalloz-actualite.fr/flash/l-article-40-du-code-de-procedure-penale-en-question-apres-l-affaire-alexandre-benalla#.XY3RU2Y6-M8

We remain available for any additional information.

Sincere greetings,

The Anticor Team

On September 26, 2019 at 20:50, Vincent B. Le Corre wrote:

Dear Sir or Madam,

I would like to know whether Article 40 of the French Criminal Procedure Code applies or not to a member of the French Parliament.

Thank you.

Sincerely,

Vincent B. Le Corre

Farah Zaoui
Legal Expertise Officer
Anticor
37-39, avenue Ledru-Rollin
75570 Paris cedex 12

To gain a clearer understanding of the sequence of events in this case, I invite you to view a detailed timeline at the following link:
https://www.ECTHRwatch.org/timeline/mcdonalds/
This timeline provides a comprehensive overview of the key milestones and developments.