Unlawful Taking of Interest: Is a Friendship Enough to Convict a Mayor?

Imagine the scene: in Saint-Max, a charming commune in Meurthe-et-Moselle, a property owner learns that the mayor sold a communal plot to a friend without competitive bidding. "Is this legal?" he wonders, concerned about transparency in local affairs. This question is asked by many, whether they are owners, tenants, or ordinary citizens.

The answer is provided by the Court of Cassation in a judgment of 5 April 2018 (No. 17-81.912). It clarifies that a simple friendship between an elected official entrusted with a public service mission and the beneficiary of a transaction is sufficient to constitute unlawful taking of interest (Article 432-12 of the Criminal Code). In other words, friendship can be an "interest of any kind" prohibited by law.

But what exactly does this change for you? This decision considerably broadens the scope of reprehensible conduct by elected officials and public agents. Henceforth, even a friendly relationship can lead to a criminal conviction, with consequences for the validity of public contracts.

The Facts: A Story That Happens Every Day

The case begins in Saint-Max, where the commune owns a building plot. The then mayor, let's call him Mr. A., decides to sell it to a close friend, Mr. B., without publishing a call for tenders or complying with publicity rules. The sale price is set at an amount deemed undervalued compared to the local market.

The public prosecutor opens an investigation for unlawful taking of interest (an offence under Article 432-12 of the Criminal Code). The mayor and his friend are prosecuted. At first instance, the criminal court acquits them, holding that friendship does not constitute a sufficient interest. But the Nancy Court of Appeal overturns this judgment in 2017: it sentences the mayor to a fine of €5,000 and declares the friend an accomplice.

The mayor appeals to the Court of Cassation. He argues that friendship is not a patrimonial or personal direct interest. The Court of Cassation dismisses his appeal on 5 April 2018: it confirms that an interest of any kind includes friendships, provided the elected official participated in the transaction (supervision, administration, or payment).

The Court's Reasoning — Analysed

The Court of Cassation relies on Article 432-12 of the Criminal Code: "The fact, by a person entrusted with a public service mission, of taking, receiving, or retaining, directly or indirectly, any interest whatsoever in an undertaking or in an operation which, at the time of the act, he has, in whole or in part, the duty to supervise, administer, liquidate, or pay, is punishable by five years' imprisonment and a fine of €500,000."

In clear terms, an elected official cannot have any interest, even moral or emotional, in an operation he supervises. The notion of "interest of any kind" is very broad: it is not limited to financial profit. Here, the friendship between the mayor and the transferee of the communal land creates a conflict of interest, because the elected official is objectively biased.

The trial judges (Court of Appeal) had noted that the mayor personally negotiated the sale and signed the deed, while he had known the buyer for years. This emotional bond is sufficient to constitute the offence. The Court of Cassation validates this reasoning: it refuses to restrict interest to a material advantage.

This is not a reversal but a confirmation of previous case law. As early as 1995 (Crim., 7 June 1995), the Court had held that family ties could constitute an interest. The 2018 judgment extends this logic to friendships. In other words, the trend is towards broadening the repression of conflicts of interest.

What This Changes for You — Practically

If you are a property owner in Pont-à-Mousson and you suspect a private sale of a communal asset to a relative of the elected official, you can now challenge the validity of the sale before the administrative court. For example, a plot sold for €50,000 when its real value is €80,000 can be annulled if the buyer is a friend of the mayor.

For tenants, this decision strengthens the transparency of public decisions. If your social landlord is a municipal authority, you have the assurance that its directors cannot favour their friends in the allocation of housing.

Buyers must exercise increased caution: buying a property from a public body without competitive bidding may expose them to an action for nullity. undefined, I have encountered cases where the buyer, in good faith, had to return the land after the mayor's criminal conviction.

Note, however: the decision only applies to persons entrusted with a public service mission (elected officials, civil servants, agents). A private individual selling to a friend is not concerned.

Four Tips to Avoid This Type of Dispute

• Check the public sale procedure: if you are buying a property from a public body, demand proof of prior publicity (call for tenders, display). Without it, the sale is suspicious.
• Declare any personal connection: if you are an elected official or public agent and must sell a property, report any friendship or family relationship with the buyer. It is better to recuse yourself.
• Consult the register of deliberations: for a property owner in Saint-Max, ask to see the municipal council deliberation authorising the sale. If it is absent or vague, alert the prefect.
• Act quickly: the limitation period for the public action is 6 years for this offence. If you have any doubt, seize the public prosecutor without delay.

Further Analysis: Related Case Law and Developments

Before 2018, the Court of Cassation had already held that family ties (Crim., 28 March 1996) or a simple professional friendship (Crim., 14 January 2015) could constitute an interest. The 2018 judgment confirms and extends this logic to any friendly relationship, even non-profit.

The trend is clear: courts are increasingly severe on conflicts of interest. In 2021, the Court of Cassation even held that mere participation in a deliberation where the elected official has an indirect interest suffices (Crim., 16 June 2021). What few people know is that the High Court applies a presumption of bias: as soon as a personal link exists, the offence is constituted, without needing to prove harm.

For the future, this case law could extend to relationships of political camaraderie or ideological affinities. Elected officials must therefore be extremely cautious.

Key Points to Remember

• Q: Can a mayor sell a plot to a friend without risk? A: No, since this judgment, friendship is an interest of any kind. He risks 5 years' imprisonment and a €500,000 fine.
• Q: What should I do if I suspect an illegal sale in Saint-Max? A: Report it to the Nancy public prosecutor. You can also bring an action before the administrative court to challenge the validity of the sale.
• Q: What are the time limits for taking action? A: The public action is time-barred after 6 years. For an action for nullity before the administrative court, you have 2 months from the publication of the sale.
• Q: Can I be convicted as an accomplice if I buy the land? A: Yes, if you knew that the seller was a friend of the elected official and that the procedure was irregular.
• Q: Does this decision apply to rentals? A: Yes, if an elected official allocates a communal dwelling to a friend, it is the same offence.

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 →