Introduction

Matrix organization

Mergers by absorption

Risks related to the expansion of the scope of criminal liability of legal entities

Validity conditions

Proof of delegation

Exemption from individual liability of delegator

Attribution of offense to legal entity

Delegations of authority

Criminal risk management within business organizations

Complicity in crimes against humanity

Breaches of secrecy

Personal data breaches

Theft

Extortion

Blackmail

Fraud

Misappropriation

Receiving/concealment of unlawfully obtained property (recel)

Attacks on automated data processing systems

Money laundering

Misappropriation by public official (concussion)

Corruption and influence peddling

Unlawful acquisition of an interest

Favoritism

Forgery and use of forgeries

Violation of Criminal Code

Offenses under the Monetary and Financial Code

Offenses under the Commercial Code

Environmental Code violations

Offenses arising from other codes

Types of offenses

Offenses under the Criminal Code, the Commercial Code, or the Environmental Code, Criminal procedure

White Collar Crime (en cours)

Like any intentional offense, culpability for favoritism requires the perpetrator to knowingly commit an act that contravenes the laws or regulations designed to guarantee freedom of access and equality for candidates in public procurement . Favoritism requires the commission of a general fraud, which consists of the intention to violate a provision governing public procurement, and a special inte …

Moral element

Like any intentional offense, culpability for favoritism requires the perpetrator to knowingly commit an act that contravenes the laws or regulations designed to guarantee freedom of access and equality for candidates in public procurement . Favoritism requires the commission of a general fraud, which consists of the intention to violate a provision governing public procurement, and a special intent, which lies in the desire to grant an unjustified advantage to another . However, the intention to cause  harm others is not required .

Persons engaging in favoritism are presumed, by virtue of their position, to have full knowledge of the provisions relating to public procurement and, therefore, to be intentionally disregarding them . The Court of Cassation therefore considers that an error of interpretation of the norm does not exclude the existence of intent , insofar as the public official cannot claim ignorance of the provisions or incompetence to justify their behavior and exclude their bad faith . The author of favoritism can only exempt themselves from criminal liability by invoking an unavoidable error of law that led them to believe they could legitimately perform the act . However, given the level of responsibility of the defendant, legal error often appears unlikely to be acceptable.. This is the case for a general director of a public housing office, who cannot claim ignorance of the need to enter into a public contract ,  a mayor who had been in office for several years and had previously been a city councillor, whose claim that he was unaware of the tendering procedure to demonstrate his lack of intent to commit favoritism , a defendant who, due to their long experience as an elected official and manager, had a perfect understanding of the rules for awarding public contracts , or the president of a university, who, as the chief authorizing officer, prepared the institution's budget, and could easily and should have noticed that the annual expenses related to catering services had been steadily increasing over several years .

Finally, the constitutive elements of the offense of favoritism are closely linked. This proximity leads the courts to directly infer the moral element from the materiality of the offense: the knowledge of the illegal nature of the work is deduced from the maneuvers that resulted in presenting an undertaking as the lowest bidder , from the attempt to renegotiate prices made by a mayor during a municipal council meeting and the execution of additional work without an amendment , from a mayor favoring the awarded companies, whose manager remunerated one of his collaborators , from the use of an association lacking any financial, operational, or decision-making autonomy, substituted for the municipality , from the fact that the Directorate General for Competition, Consumer Affairs, and Fraud Control (DGCCRF) had previously issued a report on the same facts, during which the attention of the elected officials was particularly drawn to the principle of competition , or from the fact that the mayor was previously advised by the prefectural authority of the need for fair and equal competition for the awarding of the contract in question .

Cass. crim., 14 January 2004, No 03-83.396, LawLex202200009048JBJ; 5 December 2012, LawLex202300003013JBJ.

Cass. crim., 9 September 2020, LawLex202200002235JBJ.

Cass. crim., 21 September 2005, LawLex202200010514JBJ.

Cass. crim 17 December 2008, LawLex202300002513JBJ.

Cass. crim., 16 January 2019, LawLex202300003012JBJ.

Cass. crim., 29 June 2011, LawLex202200008916JBJ.

Cass. crim., 10 September 2008, LawLex202200009049JBJ.

Cass. crim., 7 November 2012, LawLex202200008925JBJ.

Cass. crim., 25 June 2008, LawLex201000000236JBJ.

Cass. crim., 4 November 2010, LawLex202300003014JBJ.

Cass. crim., 14 December 2011, LawLex202200010518JBJ.

Cass. crim., 3 May 2012, LawLex202200008897JBJ.

Cass. crim., 24 October 2001, LawLex202300002996JBJ.

Cass. crim., 23 July 2014, LawLex202200010517JBJ.

Cass. crim., 29 January 2020, LawLex202200008991JBJ.

Cass. crim., 15 September 1999, LawLex202200008985JBJ.

White Collar Crime (en cours)

155. Moral element

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

155. Moral element

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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