Delegation of authority: drafting it without risk

Quick answer. A delegation of authority transfers part of the director's powers, and the criminal liability attached to them, to an employee within a defined field. It is valid only if the delegate has the necessary competence, authority and means. Without these three cumulative conditions, the director remains liable.

The head of a small or mid-sized company cannot be physically present on every site, in every workshop, at every safety meeting. Yet when a workplace accident, a breach of health and safety rules or a labour law offence occurs, the criminal judge looks at the director first. Delegation of authority is the tool that lets this liability pass down to the person who is genuinely in charge on the ground. It still has to be built correctly, because a poorly drafted delegation protects no one and creates a false sense of security.

This article explains what a delegation of authority really is, the validity conditions set by the Cour de cassation, its precise effect on criminal liability, and the clauses needed for it to withstand an inspection or a prosecution.

A delegation of authority is the act by which the director transfers to a subordinate, usually an employee, part of his powers and the criminal liability attached to them, within a defined field: health and safety, labour law, environment, or any other technical area of the business.

This mechanism is not defined by a single statutory article. It is a case-law construction, shaped and refined over successive rulings of the criminal division (chambre criminelle) of the Cour de cassation. This matters in practice: there is no official template to copy, and it is the judge's concrete assessment of the situation that decides whether the delegation holds.

The director is not shedding an administrative burden. He is entrusting a real power to a person who must actually exercise it. It is this reality of the transfer, not the paper, that the judge checks.

The settled case law of the criminal division makes the validity of a delegation subject to three cumulative conditions. If a single one is missing, the delegation is ineffective and criminal liability flows back to the director.

The most frequently overlooked point is the criterion of means. Delegating safety to a workshop manager who must seek approval for every compliance expense amounts to delegating nothing at all: he lacks the means to act, so the judge will set the delegation aside. To grasp the underlying stakes of personal liability, our analysis of the director's liability for management fault sets out the general logic.

A valid delegation transfers the criminal liability of the head of the business to the delegate, for offences committed within the delegated field. This is the very purpose of the mechanism and its main benefit.

It is important, however, to be clear about what is not transferred. The delegation does not shift the civil liability of the company: if a fault causes harm, the legal entity remains liable to make reparation. Nor does it transfer the status of employer, which stays attached to the company.

The key limit: personal involvement#

The delegation never applies to offences in which the director personally took part. If he gave the disputed instruction, turned a blind eye to a prohibited practice or decided the act himself, no document will exonerate him. The transfer only covers what the delegate genuinely manages in his place.

A useless delegation in very small structures#

The delegation is ineffective where the director can supervise the activity himself. In a structure of a few people where he is present day to day, the judge considers that he retains effective control and cannot hide behind a sham delegation. The tool comes into its own where the size or geographic spread of the business makes direct supervision impossible.

A common confusion weakens entire arrangements: treating a delegation of authority as a mere delegation of signature. These are two acts of a different nature.

Giving an executive the right to sign purchase orders transfers no criminal liability to him: that is a delegation of signature. To shift liability, a genuine delegation of authority is required, with a field, autonomy and means.

The delegate may in turn subdelegate part of his powers to a subordinate. Case law allows this even without the director's express authorisation, which is valuable in multi-level organisations.

Subdelegation is nonetheless subject to the same requirements as the initial delegation: the subdelegate must also have the necessary competence, authority and means. A chain of subdelegations is valid only if each link individually meets the three conditions.

No written document is legally mandatory, and a delegation may even be tacit. But the burden of proving the delegation falls on the party invoking it. On the day of a prosecution, a director who can produce only a verbal agreement is defenceless. A precise, dated written act is therefore not a formality: it is the instrument of proof.

Here are the steps and clauses of a delegation that holds up:

1. Precisely identify the delegating party and the delegate, with their roles within the company.
2. Strictly delimit the delegated field: a precise and limited area, for example health and safety at a given site, never a vague all-powers wording.
3. Describe the powers actually transferred, including the power to make decisions and to sanction.
4. Expressly record the means provided: budget, staff, spending autonomy, access to information.
5. State the delegate's competence, training and experience in the field.
6. Provide for the possibility of subdelegation if the organisation justifies it.
7. Date the act and have it accepted in writing, dated and signed, by the delegate to establish that he was aware of it and accepted it.

Consistency between this paper and the reality on the ground is decisive. A clause announcing a budget the delegate never uses without approval will turn against the company.

Validity checklist before signing#

• Is the field precise, limited and clearly bounded?
• Does the delegate genuinely have the technical competence of the field?
• Does he have effective hierarchical authority over the teams concerned?
• Does he have the financial and material means to act alone?
• Is the same field entrusted to a single person?
• Is the act written, dated and accepted by the delegate?
• Does the director refrain from intervening in the delegated field?

In the files we support, a delegation of authority rarely fails because the document is badly written. It fails because reality does not follow the paper. The director signs a fine delegation, then keeps deciding safety spending or labour matters himself. The judge then looks at the facts, not the clause, and the delegation falls.

Our recommendation is simple: you only delegate what you accept you will no longer control day to day. If the director wants to keep his hand on a field, it is better not to delegate it at all than to display a delegation that the facts will contradict. Securing these acts is best thought through with corporate legal advice, in line with your actual organisation.

The same field cannot be delegated to several people at once. This so-called cumulative delegation is a source of confusion that case law sanctions: if two managers share the same safety field with no clear boundary, neither truly holds full authority over it, and the transfer of liability collapses.

This risk often arises during a reorganisation: a new delegation is layered over an old one without revoking the first. Before any new delegation, it must be checked that no other already covers the same scope. Managing powers also ties in with the rules on appointing and removing a director, which define who holds what within the company.

An industrial SME entrusts site safety in writing to its production manager. On paper, everything is in place. But every purchase of protective equipment goes through the director's approval, as he reserves the final say on investments. On the day of an accident, the defence invokes the delegation. It is set aside: the manager lacked the financial means to act alone, so one of the three conditions was missing. Criminal liability stayed with the director. The lesson is constant: without real autonomy of means, the delegation is only a document.

• Check that existing delegations still match the actual organisation chart after staff movements.
• Revisit delegations inherited from generic templates: a vague field or unspecified means weaken them.
• Align delegations on labour matters with your payroll and compliance function, in line with payroll and social management, notably on safety and labour law.
• Document each delegate's acceptance: a delegation that has not been accepted cannot be proven.

Safety obligations take on a particular dimension from the very first hire: our guide to hiring your first employee sets out the responsibilities that follow.