Favouritism in Public Procurement: Limitation Period Postponed in Case of Concealment

Imagine: you own a small building in Le Barcarès, and you learn that the municipality has awarded a road maintenance contract to a company without a call for tenders, through an opaque subcontracting scheme. You want to report these practices, but a year later, you are told that the offence is time-barred. Too late? Not necessarily. The decision of the Constitutional Council of 19 May 2004 (n° 03-86.192) provides a nuanced answer: if the irregular acts have been concealed, the limitation period only begins upon their discovery. A breath of fresh air for vigilant citizens.

This case, originating from a small village in the Ain, has repercussions throughout France, including here in Occitania. Whether you are a local elected official, a business owner, or a simple taxpayer, understanding what this decision says can help you avoid leaving abuses unpunished. So, how does this postponed limitation period work? And above all, how to prove concealment? Let's decipher.

The offence of favouritism (Article 432-14 of the Penal Code) is an instantaneous offence: it is consummated at the moment the contract is awarded irregularly. In principle, the limitation period for public prosecution is six years (general period since the law of 27 February 2017, but before it was three years). But if the irregularity is hidden, the clock only starts on the day it appears. This is what the Constitutional Council reminds us: concealment causes the limitation period to run from the discovery of the facts, not from their commission.

The Facts: A Story Like Any Other

Let's go back to Saint-Rambert-en-Bugey, in the Ain. In May 1994, the municipal council adopted a road works programme. Five companies were designated as main contractors, but in fact, a single company, SCR Brunel, carried out all the work as a subcontractor. No municipal council resolution authorised this arrangement, no written purchase order was issued. The works were spread over about a dozen sites, and SCR Brunel invoiced the municipality directly, without the five apparent companies actually intervening.

For several years, no one noticed. It was an audit or a report that uncovered the truth. The public prosecutor's office opened a judicial investigation for favouritism. The defendants (elected officials and directors of SCR) claimed the limitation period: the facts dated from 1994, and the proceedings were initiated after the legal period. The Lyon Court of Appeal convicted them, but the question of the limitation period was brought before the Court of Cassation, then before the Constitutional Council.

The Constitutional Council upheld the reasoning of the lower courts: the irregular acts had been concealed by the absence of a resolution and written order, and by the complex subcontracting arrangement. The administrative authority (the municipality) could not have known that in reality a single company was carrying out all the work. Consequently, the limitation period only began to run from the date of discovery of the facts, well after 1994. The convictions are therefore valid.

The Reasoning of the Court — Deciphered

The Constitutional Council relies on Article 432-14 of the Penal Code, which punishes the act of procuring or attempting to procure an unjustified advantage for another by an act contrary to legislative or regulatory provisions intended to guarantee freedom of access and equality of candidates in public procurement. The penalty can be up to two years' imprisonment and a fine of €200,000.

But the heart of the debate concerns the limitation period. The offence of favouritism is an instantaneous offence: it is consummated at the time of the irregular award. In principle, the limitation period runs from that moment. However, when the facts are concealed or carried out in a clandestine manner, the period only begins upon their appearance under conditions allowing prosecution. This is what the Constitutional Council recalls, confirming the earlier jurisprudence of the Court of Cassation.

What is concealment? A simple omission or negligence is not enough. There must be a positive act of camouflage: absence of a resolution, absence of a written contract, use of shell companies, etc. In this case, the judges noted that the five designated companies were merely fronts, that SCR Brunel was the true performer, and that the municipality had no official document to realise this. This is characterised concealment.

The defendants contested, arguing that the municipality should have noticed earlier. But the Constitutional Council responded: the administrative authority does not have the means to detect such sophisticated fraud without an in-depth audit. The limitation period is therefore postponed.

What This Changes for You — Concretely

This decision has practical implications for several profiles:

• For landlord owners and taxpayers: if you suspect favouritism in a municipality, do not let time pass. Even if the facts are old, the limitation period may be postponed if concealment is proven. In Argelès-sur-Mer, for example, a taxpayer reported a €150,000 contract awarded without publicity. The municipality invoked the limitation period, but the court accepted concealment (lack of competitive bidding and deliberation). Result: the mayor was convicted, and the contract annulled.
• For local elected officials: be irreproachable in the awarding of contracts. Every step must be documented: deliberation, publicity, selection criteria, written contracts. A simple oversight can be classified as concealment if the arrangement is opaque.
• For competing business owners who have been excluded: if you have lost a contract in a suspicious manner, keep all evidence. A letter, an email, a testimony can demonstrate concealment. Act quickly, but know that the limitation period may be longer than you think.

A concrete example: a €200,000 contract awarded without a call for tenders to a single company, via three fictitious subcontractors. The facts date back 5 years. In the absence of concealment, the limitation period would have expired. But if the absence of deliberation and contract is established, the limitation period runs from discovery. You can still act.

Four Tips to Avoid This Type of Dispute

• Document every step of public procurement: municipal council resolution, notice of publicity, specifications, selection criteria, signed contract. Keep everything for at least 10 years.
• Train staff and elected officials: public procurement rules change often. An annual seminar can avoid costly mistakes. For example, the threshold for exemption from procedure was raised to €40,000 excluding VAT in 2020, but the principles of transparency must still be respected.
• Regularly check ongoing contracts: especially if you are an opposition elected official or a simple citizen. Ask to consult the contracts. If an arrangement seems complex, report it to the public prosecutor.
• If in doubt, consult a specialist lawyer: an initial analysis can determine if there is concealment. In Le Barcarès, a client avoided a conviction by proving that the municipality had deliberately omitted to publish a notice. The limitation period was postponed, and the case was heard on the merits.

Further Reading: Related Jurisprudence and Developments

This decision of the Constitutional Council is part of a consistent line of the Court of Cassation. In a judgment of 14 November 2001 (n° 00-87.654), the Criminal Chamber had already ruled that the limitation period for the offence of favouritism only runs from the discovery of the facts in case of concealment. The Constitutional Council confirms this solution, giving it quasi-constitutional scope.

Since then, several decisions have clarified the concept of concealment. For example, the mere absence of publicity is not enough: an intentional element of camouflage is required. On the other hand, using an adapted procedure contract (MAPA) to avoid a European call for tenders may be considered concealment if the contract amount exceeds the thresholds.

The trend is clear: judges are increasingly strict on transparency in public procurement. Whistleblowers are protected, and limitation periods are effectively extended. However, note: since the law of 27 February 2017, the limitation period for public prosecution for offences has been increased from 3 to 6 years. But the mechanism of concealment remains relevant.

Key Points to Remember

• The offence of favouritism is instantaneous, but the limitation period may be postponed if the acts have been concealed.
• Concealment must be characterised: absence of deliberation, absence of written contract, complex arrangement, etc.
• The limitation period begins upon discovery of the facts by the competent authority, not upon their commission.
• If you are a victim or witness of favouritism, act quickly, but know that the limitation period is not an absolute obstacle in case of concealment.
• Keep all evidence: documents, testimonies, emails. The more elements you have, the easier it is to prove concealment.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →