What signal for negotiated criminal justice?

Introduction

The singularity of the situation of Nestlé Waters compared to other incriminated water producers lies in the fact that its responsibility is likely to be sought for two series of offenses.

On June 15, 2020, several associations (1) filed with the Épinal prosecution a complaint against Nestlé Waters, accused of having exploited catchments without benefiting from the required environmental authorizations, made repressed by the environment code. The complaint is classified without follow -up. Following a hierarchical appeal (2), the general prosecution of the Nancy Court of Appeal decided on October 29, 2021 to enjoin the Épinal prosecutor’s office to seize the French Biodiversity Office (OFB) in order to entrust him with the investigation. The investigators confirm that nine boreholes did not have the authorizations required between 1992 and 2019. The situation was regularized following the issuance of an environmental authorization on September 30, 2019. According to the presentation of the Convention, ” The survey did not make it possible to establish a clear link between the administrative situation of the incriminated boreholes and environmental damage ». It is however noted that data collected on two stations show disturbances in the hydrological cycle of surface water near boreholes, as well as losses of biodiversity.

While the National Survey of Survey (SNE) of the Directorate General for Competition, Consumption and the Repression of Frauds (DGCCRF) has been investigating for several years on sector practices, Nestlé Waters has requested an interview with the ministry industry in order to evoke non -compliant practices in its factories and present a compliance plan. The Regional Health Agency (ARS) Grand-Est inspects the site and informed, on October 3, 2022, the prosecutor of Épinal of the non-conformities noted. The latter then captured the SNE for investigation.

It emerges from this survey that the company Nestlé Waters implements, before water traffic jam, prohibited treatments by the public health code: ultraviolet and microfilters treatments to remove microbiological contaminants, active charcoal filters to eliminate pesticide residues , and Balayage Co₂ To correct the water level of the water. According to the presentation of the CJIP, these treatments would not have affected the “mineral” quality of the waters, and on the contrary would allow to guarantee health security. However, the qualification of “natural” water supposes purity at the source, without treatment. The offense of “deception” concerning the allegedly “natural” character of the water sold therefore appears likely to be characterized.

I. The opportunistic application of an environmental criminal justice tool to a case of serious deception

Remember that the law provides that a CJIPE may be proposed to a legal person pursued for crimes provided for by the environment code as well as for related offenses; Without this notion of “related offenses” being defined in this context. It is therefore necessary to relate to the legal and jurisprudential definitions of connection in criminal procedure. As the presentation of the CJIPE recalls, article 203 of the code of criminal procedure provides for four cases of connection in the presence of distinct facts: the unit of time and place, the design unit, the cause relationship effect between offenses and concealment. The Court of Cassation judges that these cases are not limiting and that the concept extends ” to the cases in which there are close reports, similar to those that the law has specially provided for (3). If he deviates from legal assumptions, the criminal judge must justify it (4).

This is what the prosecutor did in this case. According to him, the close ties between environmental and deception crimes are characterized here, as soon as the facts are attributable to the same company, that they took place over several years and in a contemporary way, and that they find their origin Common in non-compliance with regulatory prescriptions relating to the management and operation of the water resource: upstream with regard to the absence of authorization for boreholes, and downstream with regard to unauthorized treatments.

If this justification may seem convincing, it ignores the radically different nature of the protective objectives pursued by the two regulations and the advantages drawn from their ignorance by Nestlé Waters.

There is no question of questioning the importance of the ecological component of the file here: the absence of authorization is not a simple formal failure. The application of the administrative authorization scheme implies compliance with a certain number of environmental protection obligations, and control of compliance with these obligations. On the other hand, as it is noted in the CJIPE, the consecutive ecological damage seems only to accessory. The use of the CJIPE on this component seems to be in accordance with the circular of criminal policy in environmental matters of October 9, 2023 (5), which lists the criteria justifying the use of transactional justice: spontaneous character of the revelation of the facts, degree of Cooperation for the regularization of the situation and the compensation for ecological damage, and the existence of judicial history.

But it is not this ecological component that worries and unwanted the public and administration the most in this case. The outcry is first based on the reasons having justified in practice the use of chemical treatment: we discover that the sources of historical water brands, appreciated by consumers in France and internationally, are contaminated by diffuse pollution. To this concern is added an indignation concerning the advantages drawn from deception. As the General Inspectorate of Social Affairs (IGAS) notes in a report (6), the cost of natural mineral waters for the consumer ” is much higher than network water “, And constitutes” A very lucrative market ». Producers have a lot of water presented to consumer as having a certain quality that it does not actually have …

Thus, while the weight of the deception component seems preponderant, because of its severity, Nestlé Waters is applied to a tool designed to facilitate the treatment of environmental offenses and justified by the fact that the main objective of environmental legislation is the delivery in condition of the site. This choice has unusual consequences in terms of criminal policy: it is because Nestlé Waters has committed offenses to environmental legislation in addition to deception that it can benefit from this transactional solution, and escape the trial correctional. The other producers who are “only” prosecuted for deception will not have this chance.

II. Important amounts but in reality little dissuasive

In his press release, the Épinal prosecutor welcomes himself to have pronounced against Nestlé Waters a fine of public interest of 2 million euros, an amount never reached in a Cjipe. But if this amount actually appears substantial in the field of criminal environmental law, we have seen that it is mainly within the framework of the deception component that Nestlé Waters took advantage of the shortcomings.

Let us add that the amount chosen is actually unrelated to the penalty incurred and with the gains. In principle, the quantum of the fine chosen by the prosecutor in his proposal as a Cjipe must be proportioned, ” If necessary with regard to the advantages drawn from the shortcomings observed, within the limit of 30 % of the average annual turnover calculated on the last three annual turnover known on the date of the report of these breaches (7). And the circular of October 9, 2023 (8) insists that the fine must be ” proportionate and dissuasive ». In this case, Cjipe’s proposal has no reference to the turnover of Nestlé Waters. To justify the quantum selected, the prosecutor indicates that ” The amount of the fine of public interest can also be fixed according to elements “ aggravating “or “ Minorants “drawn from the behavior of the legal person, such as the spontaneous revelation of the facts, his cooperation, the corrective measures put in place immediately or on the contrary his bad will to participate in the investigation, the repeated or systematic nature of the facts ». However, as we have seen, these criteria are actually those held in the circular to assess the opportunity to offer a Cjipe, not to fix the quantum fine …

Thus, Nestlé Waters benefits from a doubly favorable treatment: the same criteria are taken into account to retain a transactional regime rather than prosecution, and to reduce the amount of the fine chosen. This choice obviously makes the Nestlé Waters affair: with an average turnover between 2021 and 2023 of around 200 million euros, the amount of 2 million euros represents 1 % of turnover, far from Maximum rate of 30 % provided for by law … and unlike the objectives displayed, this choice does not absolutely have dissuasive: it is obvious that this turnover would have been much less if the water sold had been into consideration of its real characteristics.

The same failed meeting report applies with regard to compensation for victims. If seven of the eight associations are compensated, for amounts included in 30,000 and 180,000 euros, which is obviously not negligible, these amounts again seem reduced to the gravity of the facts of deception and the associated gains for the producer. An association, Foodwatch, opposed to transactional treatment, refused the proposed compensation. However, it does not have any recourse to obtain prosecution (9). To this is added a late intervention of the victims in the CJIPE procedure: it is only after having proposed the conclusion of the agreement to the questioning that the prosecutor gives the victim a date to which to be transmitted to him any element likely to establish the reality and the extent of his damage (10).

Article published on January 27, 2025