Analysis
14 July 2019

Any individual with a role in a public procurement process can be held liable for favoritism, Supreme Court says

Bastille Day Newsletter 2019 - Enforcement / Court Decisions

 

Favoritism is a probity offense which runs against the principles of equal and free access to public procurement contracts and applies to a broad category of individuals – broader than for any other probity offense – and now features in the French Criminal Code1.

The French Supreme Court (Cour de Cassation) held the chief executive of a public hospital accountable for favoritism in a judgment dated September 12, 20182. More specifically, the chief executive was blamed for awarding a contract to an architectural firm without calling for competing bids.

The court stressed that this individual – as the head authorizing officer for expenditures of a public institution – was in a position to intervene in the award of public contracts and was responsible of the very system that enabled him to bypass the rules of public procurements. The chief executive was thereby accountable for favoritism pursuant to article 432-14 of the Criminal Code – and this despite not being part of the public procurement signatories.

This decision constitutes a coherent application with the French Criminal Code, which implies that any individual who is in a position to interfere in the public procurement process and to award someone an undue advantage will undoubtedly be held liable for favoritism.

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