Since January 1, 2017, company directors have had the obligation to denounce within their companies employees who commit a traffic offense with their company vehicles. In the absence of denunciation, the manager commits an autonomous offense, the amount of which ranges from 450 to 1,875 euros.
In a recent judgment of April 21, 2020, the Court of Cassation (finally) exonerates certain companies from this obligation and thus censor the lawsuits of which they were the subject.
1. What offenses should be reported?
The law imposes the designation of the driver for many offenses when they are detected by or from automatic control devices.
These are offenses without interpellation relating to the wearing of a seat belt, the use of the telephone held in hand, the use of lanes and carriageways reserved for certain categories of vehicles, when stationary, parking or traffic on the emergency stop lanes, respecting safety distances between vehicles, crossing and overlapping solid lines, signs requiring vehicles to stop, speeding, etc. .
2. What denunciation procedure for the employer?
If the legal representative of the company decides to denounce the employee whom he believes to be the driver, the proceedings are then redirected towards the latter.
This designation must be made by registered letter AR (or dematerialized on the website www.antai.fr) within 45 days of sending the notice of violation by providing the identity and address of the natural person who was driving this vehicle.
It must also specify the reference to the driver's license of the person who was presumed to be driving the vehicle when the offense was discovered.
Once this formalism has been carried out, the legal representative then escapes the offense of non-disclosure of the driver.
3. What means of exemption for not reporting?
This designation obligation does not apply in the event of force majeure, theft or transfer of vehicle or usurpation of plates.
He must therefore attach to his contestation a copy of the receipt for filing a complaint for theft or destruction of the vehicle or for the offense of usurpation of license plate, the copy of the declaration of destruction of the vehicle, or the copies of the declaration of transfer of the vehicle and its acknowledgment of registration in the vehicle registration system (SIV).
4. But which companies are ultimately affected by this obligation?
The designation obligation resulting from article L. 121-6 of the Highway Code literally weighs on "the legal representative of a legal person".
The exercise of a professional activity can be declined in different legal forms with or without legal personality.
Remember that a legal person is a legal entity which has rights and obligations distinct from its representatives and partners (SARL, EURL, SAS, etc.).
However, not all economic enterprises have a legal personality distinct from their legal personality.
This is indeed the case, for example, of individual companies or in their own name (craftsman), liberal professions (nurses, doctor), or even self-entrepreneurs who merge with its founder.
In the case tried by the High Court, the judges quite logically ruled out the application of this obligation to an individual entrepreneur.
The Court noted that the prosecuting authorities had not produced a Kbis extract justifying that the company was actually a legal person registered in the Trade and Companies Register (RCS), or other documents, keeping by mistake when registering the vehicle with a SIRET number to wrongly deduce that it was indeed a legal person.
However, the Court of Cassation specifies that the director of the company being prosecuted, who is not a legal person, cannot be penalized for the offense of non-designation.