Illegal Interest-Taking by a Mayor: When Additional Works Become a Criminal Offence

Imagine: you are a property owner in Fleury-les-Aubrais, and the town hall decides to redo the road outside your house. The contract is awarded, the works begin. But then, without any tender process, the mayor orders the company to carry out additional works at a municipal councillor's home. Who pays? You, through your taxes. This situation, as improbable as it may seem, actually happened – and was judged by the Court of Cassation.

What distinguishes a simple budget overrun from a criminal offence? That is the question every taxpayer, every elected official, every citizen asks. The answer lies in one word: interest. Not necessarily financial, but also moral. The decision of 29 June 2011 (No. 10-87.498) is clear: a mayor who favours a councillor by ordering works outside the contract commits illegal interest-taking. Even if he derives no direct personal profit from it.

So, concretely, what do elected officials risk when they circumvent the rules? And you, what can you do if you suspect such abuse? This analysis explains everything, without unnecessary jargon.

The facts: a story that could happen every day

Mr X, mayor of a commune in the Orléans region, had entrusted a works contract to a company for an initial amount of approximately €190,000. The works supervisor, Mr B..., monitored the site. But soon, a municipal councillor, Mr D..., requested additional works for his own benefit – improvements not provided for in the contract. The mayor agreed, without going through the tender committee, and even initialled the order forms, crossing out the words “works outside contract”.

Result: the contract cost rose to €210,524.96, an increase of 10.8%. All without any competitive tendering, without a formal variation order, in violation of public procurement rules. The company, in good faith or not, carried out the orders. The matter was discovered during an audit by the regional audit chamber.

Prosecuted for illegal interest-taking, the mayor was initially acquitted at first instance. But the Court of Appeal, and then the Court of Cassation, found him guilty. For the judges, the mayor knowingly favoured a councillor by providing him with works free of charge (or at cost to the commune), which constitutes a moral interest – the councillor being a third-party beneficiary of the decision. The offence was established, even without personal enrichment of the mayor.

The reasoning of the court – broken down

The Court of Cassation relied on Article 432-12 of the Criminal Code, which punishes illegal interest-taking. This text prohibits any person holding an elective mandate (such as a mayor) from taking, receiving, or retaining any interest whatsoever in an operation for which they are responsible. The interest may be moral: for example, favouring a relative, a political ally, or a councillor in difficulty. Here, the mayor derived no direct profit, but he procured an advantage for a councillor from his majority, thereby strengthening his own power or popularity.

The judges also recalled that the mayor had ordered works outside any legal framework: no variation order to the initial contract, no consultation of the tender committee, no advertising. By acting in this way, he violated the principle of equality of candidates and the public procurement code. The Court rejected the defence's argument that the works were urgent or marginal: they represented more than 10% of the initial amount, which is significant.

This decision confirms a consistent line of case law: the prohibited interest is not necessarily financial. A mere advantage of consideration, political credit, or favouritism suffices. This is an important development, as it extends the scope of criminal sanctions against elected officials. The magistrates thus wished to send a clear message: the rules of public procurement are not optional, even for small projects.

What this means for you – concretely

For property owners and taxpayers, this decision is a weapon. If you suspect that your mayor or a local councillor has favoured a third party by ordering additional works without procedure, you can report the facts to the Public Prosecutor or the regional audit chamber. Concrete example: in Pithiviers, a resident notices that road works at a municipal councillor's home have been carried out without a site notice board. On digging deeper, he discovers that the contract amount has increased by 15% without a variation order. He can then report the facts – and potentially obtain the annulment of the contract or damages for the commune.

For real estate professionals (developers, builders), be vigilant: if an elected official asks you for additional works outside the contract, you risk becoming an accomplice to illegal interest-taking. Better to insist on a written variation order approved by the deliberative assembly. When in doubt, politely refuse.

For local councillors, the message is unequivocal: any favour, even minor, can lead to a criminal conviction (up to 5 years' imprisonment and a fine of €500,000, not to mention ineligibility). Do not give in to the temptation to “help out” a colleague or friend – the courts are watching.

Four tips to avoid this type of dispute

• Insist on a written variation order for any additional work: if an elected official or mayor asks you to carry out works not provided for, do not execute them without a document signed by the competent authority (the mayor, after a deliberation of the municipal council). This protects you criminally.
• Check the procedural thresholds: for public contracts, any overrun of more than 5% of the initial amount (or 10% depending on the case) requires a new competitive tendering or a justified variation order. Do not rely on verbal promises.
• Keep all documents: order forms, emails, meeting minutes. In the event of an audit, you can prove your good faith.
• Report any suspicion: if you are an ordinary citizen and you notice suspicious works, contact the Public Prosecutor (online reporting on the Ministry of Justice website) or the regional audit chamber. Do not remain passive.

Further reading: related case law and developments

This decision is part of a line of repressive rulings. For example, the Court of Cassation (Crim., 14 January 2009, No. 08-82.572) convicted a mayor for awarding a contract to a company owned by his son, even though the price was correct. The moral interest was also upheld there. Conversely, an older ruling (Crim., 3 December 1997, No. 96-85.469) seemed to require a direct personal interest – but case law has evolved since then.

The trend is clear: judges are increasingly strict on procedural misuse, especially when public funds are involved. The 2011 decision has been cited in many subsequent rulings, particularly for offences of favouritism (Article 432-14 of the Criminal Code). It serves as a reference for characterising the moral element of the offence.

For the future, we can expect courts to continue sanctioning any form of cronyism or nepotism in public procurement, even for modest amounts. Local authorities are under increased scrutiny, and citizens are encouraged to play a whistleblowing role.

In practice: what to do

Checklist if you think you are a victim of illegal interest-taking:

1. Gather evidence: photos, testimonies, documents (order forms, deliberations, contracts).
2. Contact the Public Prosecutor via the “Reporting” service on the Ministry of Justice website.
3. Consult a lawyer specialised in business criminal law or public law to assess the admissibility of your action.
4. If you are an elected official or public servant, alert your hierarchy or the regional audit chamber.

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