Favouritism and Unlawful Taking of Interest: a Mayor Convicted for a Public Contract in Sorgues

Imagine: you own land in Avignon, and the neighbouring town hall of Sorgues launches a call for tenders to extend its cemetery. You submit a bid, but the mayor chooses a company without clear justification. What happens if this choice is tainted by irregularities? This question, a local elected official learned to his cost, convicted both for favouritism and unlawful taking of interest. A decision of the Court of Cassation of 17 April 2019 (No. 18-83.025) has just confirmed this dual punishment. But is it legal? Can one be punished twice for the same facts? The answer is no, unless the facts are severable. Explanations.

The Facts: a Story like Many Others

In 2008, the commune of Sorgues, in the Vaucluse, decided to extend its cemetery. It launched a public procurement procedure to select a construction company. Three bids were submitted: SNTC, Eurovia Méditerranée and Tavernes Construction. The then mayor, Mr C..., selected Tavernes Construction, but without giving reasons. Later, the investigation revealed that Mr C... not only favoured this company, but also signed the contract and published the award notice, even though he had a personal interest in the contract. In short, he made a decision where his personal interests conflicted with those of the commune.

Convicted at first instance and on appeal for favouritism (the offence of impairing freedom of access and equality of candidates in public procurement) and unlawful taking of interest (the fact for an elected official to take an interest in a matter he administers), Mr C... appealed to the Court of Cassation. His argument: he cannot be punished twice for the same facts, which lawyers call the principle ne bis in idem (Latin for 'not twice for the same thing').

The Court's Reasoning — Analysed

The Court of Cassation dismissed the appeal. It held that the two offences were based on severable facts. The favouritism was constituted by the irregularities committed during the procurement procedure (lack of reasons, arbitrary choice). The unlawful taking of interest, on the other hand, was characterised by the mere decision to sign the contract and publish the award notice, acts subsequent to the selection. In other words, the mayor committed two distinct wrongs: first, he distorted competition; second, he validated a contract in which he had a personal interest.

The legal basis? Article 432-14 of the Criminal Code (for favouritism) and Article 432-12 of the same Code (for unlawful taking of interest). Here the Court applies settled case law: the principle ne bis in idem (the principle that no one may be punished twice for the same facts) does not preclude a dual conviction where the constituent elements of the offences are different. This is neither a development nor a reversal: it is a confirmation. Note, however: this decision does not mean that all dual convictions are valid. Everything depends on the actual facts.

What This Changes for You — Practically

For local elected officials (mayors, deputies), this decision is a warning: you must be above reproach in the award of contracts. If you are both decision-maker and indirect beneficiary, you risk two cumulative convictions. For businesses responding to calls for tenders, this reinforces the obligation of transparency. If you notice irregularities, you can report them. For citizens, this is a guarantee: public money is better protected.

Concrete example: in Sorgues, an excluded company could have challenged the contract. If you are in this situation, you must act quickly: the time limit for appeal is two months from the publication of the award. The amounts involved? The 2008 contract was worth several hundred thousand euros. Without an appeal, you lose a real chance of obtaining the contract.

Four Tips to Avoid This Type of Dispute

• Document every step: keep all correspondence, scoping notes, evaluation grids. A lack of reasons is fatal.
• Declare any conflict of interest: if you have a family or financial link with a candidate, recuse yourself. Unlawful taking of interest does not require actual personal gain, only a possibility.
• Seek external advice: an independent tender committee or a lawyer specialising in public law can secure the procedure.
• Respect the principles of advertising and competition: publish the notice in the BOAMP (Official Bulletin of Public Procurement Notices) and allow sufficient time to apply.

Further Reading: Related Case Law and Developments

This decision follows a consistent line of the Court of Cassation. Reference can be made to the judgment of 12 September 2018 (No. 17-85.212) where an elected official was convicted of the same offences, the Court having already found the facts severable. Conversely, in a 2016 case (No. 15-84.123), the Court quashed a dual conviction because the facts were identical. The trend is therefore case-by-case: judges carefully check whether the incriminated acts are distinct in time or in nature. Going forward, expect stricter scrutiny of public procurement procedures, especially in small communes.

What You Absolutely Must Remember

FAQ:

Can I be convicted twice for the same public contract? Yes, if the facts are severable: for example, an irregularity in the procedure and a decision to sign the contract in a conflict of interest situation.

What should I do if I suspect favouritism? Refer the matter to the administrative court by way of interim relief (pre-contractual) before signature, or contractual relief after. The time limit is very short: 11 days from publication.

What are the risks for an elected official? Up to 2 years' imprisonment and a €200,000 fine per offence, cumulative.

Can an elected official defend himself by claiming ignorance? No, because favouritism is an intentional offence: it must be proved that the official knew he was breaking the law. Ignorance is no excuse.

Does this case law apply to private contracts? No, only to public contracts. For private contracts, other rules apply (misuse of corporate assets, etc.).

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