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)

Article 432-14 targets an act contrary to legislative or regulatory provisions aimed at ensuring freedom of access and equality of candidates in public procurement and concession contracts. Thus, it concerns public procurement contracts defined by Article L. 2 of the Public Procurement Code  as “contracts concluded for consideration by a buyer or a granting authority to meet its needs in terms of  …

Relevant contracts

Article 432-14 targets an act contrary to legislative or regulatory provisions aimed at ensuring freedom of access and equality of candidates in public procurement and concession contracts. Thus, it concerns public procurement contracts defined by Article L. 2 of the Public Procurement Code  as “contracts concluded for consideration by a buyer or a granting authority to meet its needs in terms of works, supplies, or services, with one or more economic operators,” in other words, public procurement and concession contracts as per Articles L. 1100 to L. 1481-2 of the Public Procurement Code.

A contract is an agreement concluded by one or more buyers with one or more economic operators to meet their needs (Art. L. 1111-1 Public Procurement Code). The contract may concern works (Art. L. 1111-2), supplies, such as purchase, leasing, rental, or hire-purchase of products, which may include ancillary installation and fitting works (Art. L. 1111-3), or service provisions (Art. L. 1111-4). Regardless of their amount , public contracts fall within the scope of the offense of favoritism. This is notably the case for the printing contract of a general council's monthly magazine  or a consultation operation with the department's inhabitants .

Since the Sapin II Law , the incriminating text refers to “concession contracts” instead of “public service delegations” . Article L. 1121-1 of the Public Procurement Code defines a concession contract as one by which a granting authority entrusts the performance of works (Art. L. 1121-2 Public Procurement Code) or the management of a service (Art. L. 1121-3 Public Procurement Code) to one or more economic operators, to whom a risk related to the operation of the work or service is transferred, in return for either the right to operate the work or service that is the subject of the contract, or this right accompanied by a price. The public service delegation, consisting of a service concession aimed at a public service, concluded by a local authority, a local public institution, one of their groups, or several of these legal entities (Art. L. 1121-3 Public Procurement Code), now constitutes a particular form of concession contract.

Finally, since favoritism is a formal offense characterized by the mere observation of the violation of the legal rule governing public procurement without the need to demonstrate any favor towards others , it is not required that the person prosecuted has intervened, either in fact or in law, in the procedure for awarding a public contract . In other words, the contract itself cannot be considered the object of the offense .

Ordinance No 2018-1074, 26 November 2018.

Cass. crim., 14 February 2007, LawLex202200010513JBJ, which holds that the principles of freedom of access to public procurement, equal treatment of candidates, and transparency of procedures apply to all public contracts without distinguishing between those awarded without prior formalities due to their amount and those subject to such formalism.

Cass. crim 30 June 2004, LawLex202300002678JBJ.

Cass. crim., 5 May 2004, LawLex202200009051JBJ.

Law No 2016-1691 of 9 December 2016 on transparency, the fight against corruption, and the modernization of economic life known as “Sapin II,” OJ of 10 December 2016, Art. 19.

Term that was introduced by Law No 95-127 of 8 February 1995.

Cass. crim., 22 June 2022, LawLex202200009029JBJ.

Cass. crim., 7 September 2022, LawLex202200009034JBJ.

White Collar Crime (en cours)

154. Relevant contracts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

154. Relevant contracts

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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