There was a time when tax audits were almost always settled between the taxpayer and the tax authorities: tax adjustments, discussions, and possible settlements. Criminal proceedings were the exception, reserved for the most serious cases and requiring an explicit decision from the Ministry of Finance. Those days are gone. Since the abolition of the infamous ‘Bercy lock’, the shift from tax proceedings to criminal proceedings has become automatic in many cases. By 2025, every company director or high-net-worth individual must now factor this risk into their management strategy: a tax audit may result not only in a tax reassessment, but also in a criminal investigation.

The end of the ‘Bercy lock’: a major reform

Until 2018, only the tax authorities had the power to decide whether or not to refer a fraud case to the public prosecutor’s office. This prerogative, known as the ‘Bercy lock’, was criticised for its lack of transparency. The Act of 23 October 2018 on combating fraud abolished it, introducing automatic referral to the public prosecutor’s office when certain thresholds are reached.

Clear thresholds, formidable automation

The DGFiP must from now on forward the files as soon as the moment when:

• the evaded duties exceed €100,000,

• or €50,000 in the event of in the event of a repeat offence or in the event of aggravating circumstances such as (such as the use of forged documents or organised concealment).

In other words, any recovery of significant magnitude today carries a risk of criminal prosecution. And this automatic nature is formidable: it leaves little room for negotiation and places the case in the hands of the public prosecutor’s office, which retains the freedom to prosecute.

The relationship between tax and criminal law

Once submitted, the case does not, however, leave the tax system: the taxpayer must continue to respond to proposed adjustments, lodge appeals and apply for a deferral of payment. At the same time, however, criminal proceedings may be initiated, involving interviews, searches and the risk of a personal conviction.
The imposition of multiple penalties, long contested, has been upheld by case law: a single instance of fraud may give rise to both a tax assessment and criminal proceedings.

Statistics that are constantly rising

The figures speak for themselves: more than 2,000 cases were referred to the public prosecutor’s office in 2024, a record high. The trend is clear: criminalising tax audits has now become a tool of public policy. It aims not only to punish fraud, but also to strengthen the deterrent effect on company directors and investors.

How can you protect yourself against criminal liability?

The key is foresight. An effective defence strategy must:

• Ensure, at an early stage, that sensitive operations are consistent and properly documented.

• Take immediate action if a proposed correction exceeds the thresholds.

• Co-ordinating tax and criminal defence, as any statement made in one context may be used in the other.

• Consider negotiated solutions, including settlements, before the public prosecutor’s office takes full charge of the case.

Guidance from an experienced adviser is essential here, as this is a grey area where tax law intersects with criminal law.

Conclusion

Tax audits are no longer just about money. They can now put the personal liability of company directors and high-net-worth taxpayers at stake. The end of the ‘Bercy lock’ has changed the game: any significant case can be referred to the public prosecutor’s office.
In this new landscape, prudence dictates a simple rule: prepare your tax defence as if it could become a criminal case.

At Qualifisc, we support our clients in this area of risk by providing a coordinated defence before the tax authorities and the courts.