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)

The text does not define the concept of unjustified advantage. According to the Court of Cassation, the unjustified advantage constitutes the product of the offense of infringing the freedom of access and equality of candidates in public procurement and is equivalent to the total price of the market in question, including all expected direct or indirect gains resulting from the market . It necessa …

Unjustified advantage

The text does not define the concept of unjustified advantage. According to the Court of Cassation, the unjustified advantage constitutes the product of the offense of infringing the freedom of access and equality of candidates in public procurement and is equivalent to the total price of the market in question, including all expected direct or indirect gains resulting from the market . It necessarily arises from the violation of the legal or regulatory standard governing public procurement .

The unjustified advantage, which can occur at various stages of the public procurement process, can take several forms, foremost among which is the provision of privileged information to the candidate , the splitting of the contract so that it falls below the thresholds requiring a call for tenders , or the selection of subjective and hidden criteria intended to arbitrarily favor a candidate . This also includes modifying the contract's purpose so that only one company qualifies,  or the amount of the advance after the contract is awarded , or even allowing one of the candidates to complete or prepare their application file after a certain date .

The advantage may also result from the choice of procedure for awarding the public contract. This is the case with the use of a direct agreement procedure , simply by bypassing the mandatory competitive bidding procedure , using an emergency procedure to limit the number of candidates , or the abusive use of the negotiated contract procedure . The perpetrator of the offense may also collude with companies to have them submit a cover bid, in order to make another company appear as the “most advantageous” in the context of the call for tenders procedure .

The advantage is necessarily unjustified as it results from the violation of a legal rule; therefore, the text that has not been respected must be precisely identified by the courts, which cannot merely note, without further detail, the awarding of contracts to a company in disregard of the Public Procurement Code (current Public Procurement Code), without a call for competition . Consequently, the mere issuance of an insufficiently precise call for tenders is not enough to establish the existence of an unjustified advantage .

Cass. crim., 22 June 2022, No 21-85.671, LawLex202200009029JBJ.

Cass. crim., 19 May 2021, No 21-90.006, LawLex202200009050JBJ.

Cass. crim., 15 September 1999, LawLex202200008985JBJ; 19 November 2003, LawLex202300002677JBJ; Cass. crim., 3 May 2012, LawLex202200008897JBJ.

Cass. crim., 11 December 2002, No 02-80.699, LawLex202300002559JBJ; Cass. crim., 24 October 2001, No 01-81.039, LawLex202300002996JBJ.

Cass. crim., 16 November 2011, LawLex202300002511JBJ; 23 November 2016, LawLex202200010515JBJ, regarding the request made after the submission of applications for the submission of a reduced offer to favor the awarding of the contract to its author.

Cass. crim., 17 January 2007, LawLex202200008929JBJ.

Cass. crim., 6 January 2021, LawLex202200009120JBJ.

Cass. crim., 12 June 2003, No 02-81.122, LawLex202300002507JB; 28 January 2004, LawLex202200009022JBJ; 10 March 2004, LawLex202200010270JBJ; 20 April 2005, LawLex202200009828JBJ; 7 September 2022, LawLex202200009034JBJ.

Cass. crim., 10 September 2008, No 08-80.589, LawLex202200009049JBJ; 13 December 2000, No 99-86.876, LawLex202200008990JBJ, for works that did not correspond to distinct operations.

Cass. crim., 24 February 2010, No 09-83.988, LawLex202300002583JBJ 14 February 2007, LawLex202200010513JBJ, for awarding a contract to a company not based on objective selection criteria derived from the proposals made by the candidates but to “please” a third party.

Cass. crim., 20 May 2009, LawLex202200008243JBJ.

Cass. crim., 9 September 2020, LawLex202200002235JBJ.

Cass. crim., 4 November 2010, LawLex202300003014JBJ.

Cass. crim., 3 May 2012, No 11-83.179, LawLex202200008897JBJ, on the obligation for the judge to investigate whether the use of a private agreement procedure did not provide the awarded company with an unjustified advantage by restricting market access for potential candidates.

Cass. crim., 17 December 2008, LawLex202300002513JBJ.

White Collar Crime (en cours)

152. Unjustified advantage

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

152. Unjustified advantage

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise