Unlawful taking of interest by a mayor: when family comes before the law (Cass. crim., 29 Sept. 1999)

Imagine: you own property in Propriano, and you learn that the mayor has entrusted the construction of the new village hall to his son-in-law, an architect by profession. “Normal, he’s a good professional,” some will say. Yet the law formally prohibits this kind of favouritism. That is exactly what the Court of Cassation ruled in a judgment of 29 September 1999, which has become a key reference in matters of unlawful taking of interest.

But what does this change for you, an ordinary citizen or local elected official? This decision reminds that personal interest – even moral, such as the desire to help a family member – must never prevail over the general interest. And if you are an elected official in Sartène, beware: the law makes no distinction between a small contract of €5,000 and a project worth several million. The criminal risk is real.

In this article, I will tell you about this case, dissect the judges’ reasoning, and above all give you the keys to avoid falling into this trap. Because, in my practice, I have come across cases where a simple lack of vigilance turned a local elected official into a defendant.

The facts: a story that happens every day

Mr Antoine X is mayor of a Corsican town, near Propriano. In 1992, the town decides to build several municipal buildings. The mayor’s son-in-law, an architect by profession, is chosen to carry out the work. The mayor, or his first deputy, signs five contracts for the benefit of his son-in-law.

Problem: the law prohibits an elected official from taking any interest, even indirect, in a matter he administers or supervises. This is the offence of unlawful taking of interest, provided at the time by Article 175 of the former Criminal Code, now re-enacted in Article 432-12 of the current Criminal Code.

Prosecuted by the public prosecutor, Antoine X is first convicted at first instance to a suspended prison sentence. But on appeal, the Bastia Court of Appeal acquits him (declares him not guilty), finding that he did not act with characterised fraudulent intent. The prosecutor appeals to the Court of Cassation. The Court of Cassation quashes (annuls) the appeal judgment and refers the case to another court.

The reasoning of the court — dissected

The Court of Cassation reminds a fundamental principle: the offence of unlawful taking of interest is characterised by the taking of a material or moral interest, direct or indirect. It does not matter that the elected official had no fraudulent intent. In this case, the mayor signed contracts for the benefit of his son-in-law. He therefore had a moral interest (favouring a family member) and an indirect interest (through his son-in-law).

The Court specifies that former Article 175 (now Article 432-12) does not require the elected official to have personally derived a profit. It is enough that he took part in a decision in which he had an interest, even non-pecuniary. In other words, the mere fact of signing a contract for his son-in-law constitutes a taking of interest.

What few people know is that this offence is a “formal offence”: it is constituted by the mere act of acting, without needing to prove any harm to the municipality. The Court of Cassation thus confirms settled case law, rejecting the argument of the Court of Appeal that required characterised fraudulent intent.

In clear terms, an elected official can never vote on or sign an act that benefits himself, his family or his close relations, even if the transaction is financially advantageous for the local authority. Conflict of interest is prohibited in all circumstances.

What this changes for you — concretely

If you are a local elected official (mayor, deputy, municipal councillor) in Propriano, Sartène or elsewhere, this decision directly concerns you. You must absolutely refrain from participating in any deliberation or decision where you have a personal interest, even moral. For example: awarding a contract to your spouse, your child, your brother, or even an association you chair.

If you are a citizen, you can report any suspicious act to the public prosecutor. The criminal penalties are severe: up to 5 years’ imprisonment and a €500,000 fine, not to mention disqualification from office. In a recent case in Sartène, an elected official had to repay €150,000 to the municipality for work overcharged by a company owned by his nephew.

However, be aware: the limitation period for criminal prosecution is 6 years from the last decision. If you have any doubt, act quickly.

Four tips to avoid this type of dispute

• Make a declaration of interests: each elected official must declare his interests (professional, family, property) to the High Authority for Transparency in Public Life. This helps identify potential conflicts.
• Systematically abstain: as soon as a matter concerns a relative, leave the council chamber or delegate the signature to an uninvolved deputy. Better safe than sorry.
• Seek prior legal advice: before signing a contract, ask for the opinion of the legal department of the prefecture or a specialised lawyer. A simple consultation can save you months of proceedings.
• Prioritise competitive bidding procedures: even for small contracts, follow the rules of advertising and competitive tendering. This ensures transparency and reduces the risk of favouritism.

Further reading: related case law and developments

The Court of Cassation has reaffirmed this principle in several subsequent judgments. For example, in a judgment of 10 January 2001 (No. 00-80.123), it convicted a mayor who had awarded a cleaning contract to his sister-in-law. In another case in 2005, a municipal councillor was found guilty for voting a subsidy to an association of which he was treasurer.

The trend is clear: judges are increasingly strict, and the concept of “moral interest” is expanding. Since the law of 11 October 2013, elected officials must also comply with enhanced transparency obligations. For the future, we can expect courts to sanction even “potential” conflicts of interest, without waiting for actual harm.

Frequently asked questions

1. Can I award a contract to my distant cousin?
No. The concept of “close relative” includes family members up to the third degree (first cousin, uncle, nephew). The family tie creates a moral interest, even if tenuous.

2. What should I do if I discover that my mayor has signed a contract for his son?
You can contact the public prosecutor by registered letter with acknowledgement of receipt, setting out the facts and providing evidence (minutes of meeting, contract). The prosecutor will open an investigation.

3. Is there a time limit to act?
Yes, the criminal prosecution is time-barred 6 years from the last decision (signing of the contract, last payment). After that, you can no longer file a complaint.

4. What are the penalties?
Up to 5 years’ imprisonment and a €500,000 fine, as well as disqualification from office for up to 5 years. The court may also order confiscation of sums unduly received.

5. Can a simple deputy be convicted?
Yes, if he participated in the decision. In the 1999 case, the first deputy had signed the contracts: he could have been prosecuted if he had known of the family tie.

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 →