Fuel theft within a company in France: what steps to take and what action can you bring?

A tank whose level drops faster than the recorded fill-ups, a fuel card showing volumes that bear no relation to the routes driven, a company vehicle that burns fuel for two. Fuel theft mainly affects businesses that run a fleet or store diesel on site: transport, construction, logistics, farming, works companies.

This article sets out:

1. how to react when you first notice it, so as to preserve the evidence,
2. the offences that may apply depending on how the “theft” is carried out,
3. the penalties the offender faces,
4. what compensation the company can claim.

What are the first steps when you discover fuel theft?

How can you gather evidence without making mistakes?

The first step is to secure the physical evidence while it is still available. In criminal matters, evidence is admissible by any means: tank readings, fuel-card logs, vehicle geolocation data, CCTV recordings, receipts, invoices and witness statements can all help establish that the misappropriation took place. The earlier these items are dated, cross-checked and kept, the stronger the body of evidence they will form.

Should you file a complaint, and in what form?

I recommend filing a criminal complaint (dépôt de plainte), either by going to the police station or gendarmerie, or by sending a registered letter with acknowledgement of receipt to the public prosecutor (procureur de la République) for the place where the offence was committed.

It is essential to attach to the complaint the evidence in your possession, together with anything that could identify the offender if you have not identified them at the stage of filing.

How do you coordinate the complaint with the other aspects of the matter?

As regards the company’s insurer, if an insurance policy has been taken out, the company may, after filing the complaint, submit a claim to its insurer.

Where the suspected offender is an employee, alongside the criminal proceedings a precautionary suspension (mise à pied conservatoire) of the employee may be considered pending the outcome of the criminal case.

Theft, breach of trust or fuel fraud: how is the misappropriation of fuel classified?

The classification of the offence depends on how the offender took the fuel.

When is it fuel theft in the strict sense?

Theft is defined by Article 311-1 of the French Criminal Code as the fraudulent taking of property belonging to another (la soustraction frauduleuse de la chose d’autrui). It requires two elements: a physical taking, the act of helping oneself, pumping or carrying away the fuel, and fraudulent intent, the will to appropriate it without any right. Fuel is movable property; as soon as it is taken from its owner without authorisation, theft is made out.

Within a company, theft typically corresponds to the employee who siphons the depot tank, draws diesel from a fleet vehicle or helps themselves without authorisation.

When does the misappropriation amount to breach of trust?

Breach of trust (abus de confiance), set out in Article 314-1 of the French Criminal Code, covers the act of misappropriating property, funds or valuables handed to a person on terms that they return them, produce them or use them for a specified purpose. The difference with theft lies in this prior handing over. In theft, the offender takes what they knew did not belong to them. In breach of trust, the offender received the property lawfully but then diverts it from the agreed use.

Examples:

• an employee uses a fuel card entrusted to them to fill their company vehicle, then uses it to fill their personal vehicle or to resell fuel,
• a former employee keeps the fuel card when leaving the company and carries on using it.

What is fuel fraud (filouterie)?

A third classification exists, fuel fraud (filouterie de carburant, Article 313-5, 3° of the French Criminal Code). It penalises a person who knows they cannot pay or has decided not to pay, yet has fuel served to them by a distribution professional. This distinction mainly concerns service stations.

What penalties does the offender face for fuel theft?

Basic theft is punishable by three years’ imprisonment and a €45,000 fine (Article 311-3 of the French Criminal Code).

Breach of trust is, following a recent reform, punishable by five years’ imprisonment and a €375,000 fine (Article 314-1 of the French Criminal Code).

Fuel fraud, which is less severely punished, carries six months’ imprisonment and a €7,500 fine (Article 313-5 of the French Criminal Code).

These figures correspond to the maximum penalties provided for by law. The penalty actually handed down depends on the circumstances, the amount misappropriated, the offender’s record and the court’s assessment.

These penalties may be increased where aggravating circumstances apply.

What compensation can the company obtain?

How do you claim damages from the offender?

A criminal conviction punishes the offender, but it does not, on its own, make good the company’s loss.

To obtain compensation, the victim must join the proceedings as a civil party (se constituer partie civile). It may in particular do so directly at the hearing and claim damages.

Compensation follows the principle of full reparation: the company can claim every head of loss that flows directly from the offence.

By way of example, the heads of loss may include the following, to be adapted to your situation:

• the value of the fuel misappropriated,
• compensation for physical damage (the cost of repairing a pierced tank, and so on),
• internal time spent on investigations, collecting documents and filing the complaint,
• bank charges, for instance where these acts caused an overdraft,
• interest on a loan taken out because of a cash-flow problem directly linked to the facts,
• non-material harm (préjudice moral), in particular where the facts affect relations with the company’s business partners,
• lawyer’s fees.

How do you actually recover these sums after a criminal judgment?

Obtaining a decision and being paid the sums due are two different things. Actual recovery depends on the offender’s solvency, which is a reason to assess the chances of recovery early and, where appropriate, to consider protective measures (mesures conservatoires). No outcome can be guaranteed in advance: everything depends on the evidence gathered, the classification retained and the offender’s situation.

Where the company’s insurance policy covers theft, it may cover part of the loss, subject to the conditions of the cover.

Why work with a lawyer in business criminal law?

A lawyer in business criminal law (droit pénal des affaires) can frame the classification in light of the actual facts, secure the gathering of evidence, coordinate the criminal aspect with any disciplinary one, and protect the company’s reputation during the proceedings. As every case is different, these general pointers are no substitute for a full analysis of the situation. If your company is facing fuel misappropriation, a discussion with a lawyer, file in hand, will help determine the most suitable strategy.

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