Customer Information And Breach Of Trust
LexInter | March 9, 2017 | 0 Comments

Customer Information And Breach Of Trust

Cour de cassation
criminal chamber
Public
hearing of Wednesday, November 16, 2011 Appeal number: 10-87866
Published in the bulletinCassation

M. Louvel (president), president
SCP Thouin-Palat and Boucard, lawyer (s)

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, delivered the following judgment:

Ruling on the appeal brought by:

– The Commercial Telecommunications Company, civil party,

against the judgment of the investigating chamber of the Court of Appeal of AIX-en-PROVENCE, dated October 13, 2010, which , in the information followed, on his complaint, against MM. Frédéric X … and Franck Y … of the head of breach of confidence , confirmed the order of dismissal made by the examining magistrate;

The COURT, ruling after debates in the public hearing of October 19, 2011 where were present: Mr. Louvel president, Mrs. Labrousse advisor rapporteur, Mr. Dulin, Mrs. Desgrange, Nocquet, Mr. Couaillier, Mrs. Ract-Madoux, Mr. Bayet , Mrs Canivet-Beuzit, MM. Bloch, Buisson, Mme Mirguet, advisers of the chamber,

Advocate General: M. Finielz;

Chamber clerk: Mrs Krawiec;

On the report of Mrs. the referendum adviser LABROUSSE, the observations of the professional civil society THOUIN-PALAT and BOUCARD, lawyer in the Court, and the conclusions of the lawyer general FINIELZ;

Having regard to the brief produced;

On the sole means of cassation, taken from the violation of articles 314-1 of the penal code and 593 of the code of penal procedure;

“in that the confirmatory judgment attacked said there was no need to follow the head of breach of trust against Messrs. X … and Y …;

“on the grounds that it is for the investigating chamber to assess whether there is sufficient evidence to show that the facts alleged against Messrs. X … and Y … are likely to constitute the offense of breach of trust ; that article 314-1 of the penal code provides ” breach of trustis the act by a person of diverting, to the detriment of others, funds, values, or any good that have been given to him and that he has accepted on condition of returning or representing them or making them a specific use “; that these terms, funds, securities must be understood by money, jewelry, securities and any property, by any movable object, namely, written having a market value such as customer file, it being specified that this good must have been misappropriated to constitute the material element of the offense; that it follows from all the elements of the procedure above recalled that Messrs. X … and Y … have undoubtedly misused a part of the customers of the company SCT Télécom; that, however, the customers are not a good likely toto be hijacked and its hijacking cannot constitute the basis of a criminal prosecution of thebreach of trust; that, moreover, the civil party accuses Mr X … of an alleged misappropriation of contracts from the company SCT Télécom to the company Vertigo Télécom which, according to his statements “could only have been achieved by the possession by the company Vertigo Télécom of files of the customers of the company SCT Télécom given by Mr X … or another employee “; that the judicial investigation did not allow, despite the precautions taken by the civil party, spinning, authorization granted to the judicial officer to go to the home of MM. X … and Y … for the purpose of finding, to discover any customer file withdrawn from the employer; that the witnesses heard during the investigation found no misappropriation of customer files; that MZ .. has confirmed, during his hearing of June 25, 2007, that no central unit of the SCT Telecom agency had disappeared, which demonstrates the mistake of Mrs. A … who had believed to see Mr X … take away the base of a computer belonging to the company on December 23, 2005 and confirms the words of Mr. X .. who declares to have recovered, that day, his personal printer; that it does not result from the elements of the procedure of serious index of a diversion of any file of customers; that thus, in the absence of subtraction from a file, the use of the material means made available to the persons under examination cannot constitute the offense of X … to carry the base of a computer belonging to the company on December 23, 2005 and confirms the remarks of MX … who declares to have recovered, this day there, his personal printer; that it does not result from the elements of the procedure of serious index of a diversion of any file of customers; that thus, in the absence of subtraction from a file, the use of the material means made available to the persons under examination cannot constitute the offense of X … to carry the base of a computer belonging to the company on December 23, 2005 and confirms the remarks of MX … who declares to have recovered, this day there, his personal printer; that it does not result from the elements of the procedure of serious index of a diversion of any file of customers; that thus, in the absence of subtraction from a file, the use of the material means made available to the persons under examination cannot constitute the offense ofbreach of trust , as soon as these elements do not constitute funds, securities or goods placed in charge of returning them, representing them or making a specific use of them;

“1 °) whereas, commits a breach of trust the employee who uses abuseive information which has been entrusted to him by his employer for the needs of his function under conditions foreign to those provided for when the handing over and in particular for the needs of a competing company; that the company SCT Télécom maintained that the capture of a customer file by MM. X … and Y … would in any event have been unnecessary, since all the employees of the company were in possession of the customer listings and the information relating to the customers that it had entrusted to its employees, MM. X … and Y …, had been used by the latter with the aim of promoting a competing company, the company Vertigo Telecom, in which they exercised the functions of management; that by limiting itself to asserting that judicial information abusive , by MM. X … and Y …, information appearing in the files clients was not constitutive of the crime of breach of trust , the chamber of instruction not legally justified its decision;

“2 °) whereas the company SCT Télécom also argued that Mr X … had given instructions to the employees of this company so that the information relating to the most important customers is directed towards the company Vertigo Télécom so that they become customers of this and that it had established a two-month trial period for all SCT Telecom contracts, which made it possible to switch freely to another operator; that by simply stating that it did not result elements of the procedure of serious indication of a misappropriation of any customer file, without seeking, as he had been asked, whether the transfer, by Mr X … to another company, of the information contained in the customer files, n ‘did not constitute the offense of abuse of confidence , the investigating chamber did not legally justify its decision;

“3 °) whereas the company SCT Télécom maintained that Messrs. X … and Y … had misled the customers of the company, by indicating to them that the company was going to disappear in order to lead them to sign a contract with the company Vertigo Télécom and by claiming that this came to the rights of the company SCT Télécom; by limiting itself to asserting that it did not result from the elements of the procedure of serious indication of a misappropriation of any client file, without searching, as he had been asked, if Messrs. X … and Y … had not committed the offense of breach of trustby communicating false information on the fate of the latter to former clients of the company SCT Télécom in order to lead them to sign a contract with the company Vertigo Télécom, the investigation chamber did not legally justify its decision “;

Considering article 314-1 of the penal code;

Whereas the provisions of this text apply to any good, susceptible of appropriation;

Whereas it follows from the judgment under appeal that the Société commerciale de distribution (SCT Télécom), a broker in telephone services, lodged a complaint and became a civil party before the dean of the examining magistrates by exposing that Mr. , regional director of this company, had diverted the customers on behalf of a competing company, managed by MY .., one of his former employees, using for this purpose the information of which he was depositary within the company SCT Telecom;

Whereas, to confirm the order of dismissal issued by the examining magistrate, the judgment states that the breach of trustcan only relate to “any movable object, namely, written having a market value such as a customer file”; that the judges add that, if it is indisputable that MX … and MY … have diverted part of the customers of the company SCT Télécom, this fact can not be continued under the qualification of breach of trust , since the clientele is not a good liable to be misappropriated and that no misappropriation of files has been established;

But whereas in ruling thus, while the information relating to the customers constitute a good likely to be diverted, the room of the instruction disregarded the aforementioned text and the principle stated above;

Of

For these reasons:

BREAKDOWN and CANCELED, in all its provisions, the aforementioned judgment of the investigating chamber of the Aix-En-Provence Court of Appeal, dated October 13, 2010, and so that it be tried again, in accordance with the law;

REFERS the case and the parties to the investigative chamber of the Nîmes court of appeal, to that designated by special deliberation taken in the council chamber;

ORDERS the printing of this judgment, its transcription on the registers of the clerk of the investigation chamber of the Aix-en-Provence court of appeal, its mention in the margin or following the annulled judgment;

Thus done and judged by the Court of Cassation, criminal chamber, and pronounced by the president on November sixteenth, two thousand and eleven;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

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