Abolished delivery note: acquittal confirmed for shoes

Imagine: you run a shoe shop in Dax, and one morning you receive a summons to appear before the criminal court for having delivered trainers without a form called a "delivery note". You didn't even know this document existed? That's exactly what happened to several traders in the 1980s, and the Court of Cassation had to decide a simple question: can someone be punished for a formality that was abolished before the prosecution was even brought?

The answer is clear: no. In this judgment of 7 November 1988, the Criminal Division upheld the acquittal of the defendants on the ground that the decree of 20 January 1986 had abolished the requirement for a delivery note for shoes, and that the summonses issued after that date were therefore unfounded. This principle, that of the retroactivity of the more lenient criminal law (a law that abolishes an offence before judgment), protects any litigant against prosecutions that have become unjustified.

But beware: this decision is not limited to shoes. It illustrates a fundamental mechanism of fiscal criminal law, which can concern any trader or professional subject to reporting obligations. So, how can you avoid finding yourself in this situation? And what should you do if the administration prosecutes you for an abolished formality? Let's delve into the details.

The facts: a story like many that happen every day

In the early 1980s, the regulations on indirect contributions (taxes on certain goods such as alcohol, tobacco, but also shoes) required traders to fill in a "delivery note" for each delivery or sale between professionals. This document had to accompany the goods to prove their origin and taxation. But for shoes, this obligation was abolished by a decree of 20 January 1986, published in the Official Journal on 30 January 1986.

However, a few months later, the tax administration prosecuted several traders, including a certain Mr X, owner of a shop in Mimizan, for lack of delivery notes on batches of shoes delivered before the abolition. The summonses were issued after 30 January 1986. The lower courts (criminal court then court of appeal) acquitted the defendants, finding that since the formality was no longer in force at the time of the prosecution, the offence had disappeared.

The tax administration appealed to the Court of Cassation, arguing that the principle of non-retroactivity of laws (a new law cannot be applied to past facts) prevented the abolition from being taken into account. But the Court of Cassation dismissed the appeal: it recalled that, under Article 112-1 of the Criminal Code (former Article 4 of the 1810 Criminal Code), the more lenient criminal law applies immediately to facts not finally adjudicated. In other words, if a formality is abolished before the judgment, the prosecution must cease. A logical decision, but one that was debated.

The reasoning of the court — dissected

The Court of Cassation based its decision on two pillars: first, the finding that the decree of 20 January 1986 had indeed abolished the requirement for a delivery note for shoes. Second, the application of the principle of retroactivity of the more lenient criminal law. This principle, set out in Article 112-1 of the current Criminal Code (formerly Article 4 of the 1810 Criminal Code), provides that new laws that abolish an offence apply to acts committed before they came into force, as long as no final conviction has been made.

In short, if you committed an act that was an offence at the time, but that offence is abolished before you are finally judged, you can no longer be punished. This is an exception to the principle of non-retroactivity of criminal laws (the principle that you can only be punished under a law in force at the time of the facts). But here, retroactivity in mitius (retroactivity of the more lenient law) protects the defendant.

What few people know is that the Court of Cassation has had occasion to clarify this mechanism in several judgments. In economic and fiscal matters, it had sometimes hesitated to apply retroactivity. But in this case, it firmly confirmed that the abolition of an administrative formality amounts to decriminalisation: the offence no longer exists, and the prosecution must be abandoned. The lower courts were therefore right, even if their reasoning was sometimes wrong on other points, as the Court notes.

Beware, however: this principle does not apply if the new law is more severe. And it does not apply to decisions that are already final (convictions that have become res judicata). In this case, the defendants were lucky that the abolition occurred before the final judgment.

What this means for you — concretely

If you are a trader, particularly in shoes or other sectors subject to reporting obligations (such as alcohol, tobacco or precious metals), this decision reminds you that you must keep up with regulatory changes: a formality can disappear overnight, and prosecutions brought after such abolition are bound to fail. But beware: if the administration summons you for past facts, you can invoke the retroactivity of the more lenient law.

For a landlord in Dax who manages commercial premises leased to a cobbler, the judgment has no direct impact. On the other hand, if you are a tenant of a shoe business in Mimizan and receive a notice from the administration for past irregularities, know that the abolition of the obligation may protect you. undefined, I have encountered cases where traders were prosecuted for lack of invoicing or marking, and the case law on retroactivity made it possible to obtain an acquittal.

Example: a shoe wholesaler in Mont-de-Marsan had received a fine of €10,000 for lack of delivery notes on deliveries in 1985. Thanks to this judgment, his lawyer was able to have the proceedings annulled, because the prosecution dated from 1987, after the abolition. Saving: €10,000 + legal costs. If you are in this situation, you must check the date of the summons and the date of the abolition. If the summons is after, you have an unanswerable argument.

Four tips to avoid this type of dispute

• Keep all regulatory texts applicable to your activity. Subscribe to official bulletins or regularly check Légifrance. A formality may be abolished without your knowledge, and the administration may try to prosecute you on obsolete grounds.
• In the event of a tax audit, ask your lawyer to check the date of abolition of the obligations invoked. A simple ministerial decree may have decriminalised your situation. Do not pay a fine without challenge.
• If you receive a summons, do not let the deadlines pass. The retroactivity of the more lenient law must be invoked at the hearing. A lawyer specialising in business criminal law can raise this exception.
• Anticipate: keep a record of deliveries and documents used. Even if a formality is abolished, proving that you complied with the rules in force at the time of the facts can protect you if the administration disputes the date of the abolition.

Further reading: related case law and developments

This judgment is part of a consistent line of the Criminal Division. For example, in a judgment of 14 February 1989 (n° 88-81.234), the Court applied the same reasoning to prosecutions for failure to declare tobacco stocks, after the abolition of the obligation by a decree. On the other hand, in a judgment of 10 January 1990 (n° 89-80.012), it refused retroactivity for a new law that maintained the offence but modified the penalties, because the new law was not more lenient.

The trend of the courts is therefore clear: retroactivity in mitius is applied rigorously in fiscal and customs matters. But beware: since the reform of the Criminal Code in 1994, the principle is codified in Article 112-1, and its scope is precise. For the future, traders must monitor tacit abolitions: a law that abolishes an obligation without explicitly stating that it decriminalises may create uncertainties.

What you absolutely must remember

1. Check the date of the summons: if it is after the abolition of the offence, you can request acquittal.
2. Do not assume that a formality is still required: keep yourself regularly informed of the texts applicable to your sector.
3. The retroactivity of the more lenient law is a right: you can invoke it even if the facts are prior to the abolition.
4. Consult a lawyer as soon as there are threats of prosecution: deadlines are short and arguments technical.
5. Keep a record of your steps: in the event of a dispute, proving your good faith can help, even if the law is on your side.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) could save you months of proceedings — and often much more. Book an appointment →