French Supreme Court (Cour de cassation), Criminal Division, 7 January 2026, No. 24-87.222, published in the Bulletin
The Criminal Division holds that setting the thresholds of an invitation to tender at the request of a bidder confers an unjustified advantage on that bidder, irrespective of the fact that the procedure thus launched was not completed, even where it was cancelled at the instigation of the defendant himself. Active repentance occurring after the act constituting the offence has been established does not exonerate its perpetrator.
While one might readily assume that the criminal risk attached to public procurement crystallises at the moment a contract is awarded, once it has been signed and the other bidders excluded, it in fact arises much earlier, from the very first exchanges preparing the tender. It materialises in acts that their authors often regard as harmless: an email, a meeting, the adoption of a figure suggested by a company in the sector. The judgment under review offers an eloquent illustration, holding that the offence may be established even though the invitation to tender was cancelled before any award.
Defined by Article 432-14 of the French Criminal Code, the offence of favouritism (délit de favoritisme) requires four elements to be met. First, the perpetrator must hold a particular capacity: that of a person holding public authority, entrusted with a public service mission, holding elected office or acting as a representative, director or agent of a public body. Second, he must have committed an act contrary to the statutory or regulatory provisions intended to guarantee freedom of access and equal treatment of candidates in public contracts and concession contracts. Finally, that act must have conferred an unjustified advantage on another and been carried out in the knowledge of the irregularity committed. By contrast, the provision requires neither that the contract has been awarded nor that the public body or the excluded competitors have suffered any loss.
In the case at hand, on 27 December 2013 the president of a regional chamber of commerce and industry reported to the public prosecutor acts of favouritism that had occurred in connection with the award of two public contracts (§ 2). The chief executive of the institution was then prosecuted for having favoured a bidding company, the incumbent contractor, in a tender launched on 28 April 2011 and then cancelled on 20 July of the same year at his own initiative (§ 3). Emails and witness hearings showed that he had intervened in the procedure to approve the setting of the contract thresholds as requested by the head of a company with whom he had remained in contact throughout the tender. He had, moreover, discussed the matter on several occasions with an employee of the institution who had warned him that the contract could not be awarded under such conditions (§ 9).
Convicted at first instance and then by the Aix-en-Provence Court of Appeal and sentenced to six months’ suspended imprisonment and three years’ ineligibility for public office, the chief executive appealed to the French Supreme Court (pourvoi), contesting the finding of the material element, on the ground that the judges had not established that he knew the origin of the request to amend the thresholds, as well as the very existence of an unjustified advantage, since the procedure had been spontaneously discontinued. He further criticised the Court of Appeal for failing to identify any specific provision that had been breached, arguing that Article 1-II of the Public Contracts Code (code des marchés publics), then applicable to the facts, merely laid down a general principle of competitive tendering. Finally, he contested the finding of the intentional element, since he himself had recommended that the flawed procedure be halted (§ 6).
The question was whether the cancellation of the tender, obtained by the very person who had set its conditions to benefit a bidder, precludes a finding of the offence of favouritism.
The Criminal Division answers in the negative and dismisses the appeal, holding that “setting the thresholds of an invitation to tender at the request of a bidder constitutes an unjustified advantage conferred on that bidder, irrespective of the fact that the invitation to tender, once launched, was not completed, even where it was cancelled at the defendant’s request” (§ 15). It adds that the intentional element is established where the offence “results from the knowing performance of an act contrary to the statutory or regulatory provisions” protecting access to public procurement, “active repentance occurring after the act constituting an offence has been established not, in any event, exonerating its perpetrator from liability” (§ 16).
In this decision, the Criminal Division holds that a provision laying down a principle constitutes the rule whose breach, through the disclosure of privileged information to a bidder, completes the offence (I). The result, namely the award of the contract, is irrelevant. Moreover, the conduct of the defendant, who nonetheless put an end to the procedure, demonstrates his awareness of the irregularity committed (II).
I. The unlawful disclosure of privileged information to a bidder
The offence of favouritism presupposes the existence of a statutory or regulatory provision intended to guarantee freedom of access and equal treatment of candidates. In the case at hand, the defendant argued that Article 1-II of the Public Contracts Code then in force, which merely sets out the principles of freedom of access, equal treatment and transparency, could not serve that purpose, since it did not define the practical arrangements for competitive tendering.
The Court rejects this argument, noting that the trial judges, by finding a breach of that provision, had indeed established an act contrary to the provisions guaranteeing freedom of access and equal treatment of candidates (§ 14). A provision setting out a principle, however general, is therefore sufficient to provide the reference rule for the offence. This position is hardly surprising, however, as it has regularly been stated by the criminal courts, which give punitive effect to the opening principles of the Public Contracts Code (Cass. Crim., 14 February 2007, No. 06-81.924; Cass. Crim., QPC, 30 November 2011, No. 11-82.961).
The offence under consideration further requires a particular capacity on the part of the perpetrator, which the Criminal Division has long recognised in any person who has the power to intervene in the conduct of a contract award procedure in order to prepare or propose decisions taken by others (Cass. Crim., 20 April 2005, No. 04-83.017; Cass. Crim., 12 September 2018, No. 17-83.793). Here again, the chief executive fell within that category, even though he sat on none of the bodies called upon to decide on the award, the hierarchical authority exercised over the staff responsible for preparing the contract being sufficient to establish that power (§ 8). The solution confirms that the circle of perpetrators is determined by actual influence over the procedure and not by the signature alone, the Court having also held that the provision does not require the person prosecuted to have intervened, in fact or in law, in the award procedure, since the technical knowledge and expertise derived from his position are sufficient to provide him with the necessary privileged information (Cass. Crim., 7 September 2022, No. 21-83.121).
With the elements of the precondition met, it remained to establish the actus reus of the offence of favouritism, which, in the case at hand, lay in the breach of Article 1-II, completed by the disclosure to a bidding company of information that its competitors did not have, the Court of Appeal having noted contacts maintained throughout the tender with the head of the incumbent company, established both by the emails and by the witness hearings (§ 9). Breaking equality between candidates therefore requires neither misappropriation of funds nor any consideration, but simply sharing with one what is not shared with the others. The line is therefore not drawn by the existence of dialogue with economic operators, which is often necessary to define the contracting authority’s needs, but by the asymmetry of the information provided.
The fact remains that the company thus favoured never obtained the contract, the tender having been cancelled before its completion, a circumstance whose bearing on the finding of the offence must be assessed.
II. The irrelevance of whether the intended result occurs: active repentance
The result sought by the defendant was precisely identified: the approval of the contract thresholds as requested by the head of the incumbent company. That result was never achieved, the invitation to tender having been cancelled less than three months after its launch. Yet this circumstance has no bearing on the finding of the offence, since the unjustified advantage does not lie in the award of the contract but in the fact that “the conditions of the contract […] were specifically tailored to the expectations and resources of the said company” (§ 10). The advantage was therefore acquired at the moment the thresholds were set on that company’s indications, and nothing that subsequently happened to the tender could take it away.
One might have thought that discontinuing the competitive tendering procedure reduced the conduct to an attempt, which Article 432-14 in any event criminalises in the same way as conferring the advantage. That classification was nonetheless ruled out, since an attempt presupposes an actus reus that remained incomplete, whereas the breach of the principles of public procurement was here fully completed.
In these circumstances, the mental element is reduced to awareness of committing the prohibited act, the Court reiterating that the offence results from the knowing performance of an act contrary to the provisions protecting access to public procurement (§ 16). Accordingly, the fact that the contract was ultimately not awarded to the company, the perpetrator himself having put an end to the procedure, amounts to no more than active repentance, with no bearing on the finding of the offence.
The reversal is even more formidable, since the defendant’s own conduct provides proof of the mental element. The trial judges had indeed inferred from the request made to the president to bring the contract process to an end that the defendant was aware of the unlawfulness of the act committed, irrespective of the fact that mere procedural errors had been publicly cited to justify that decision (§ 11). The act by which he sought to make amends becomes the one that proves he knew.
While the legal reasoning is hard to dispute, the implicit admission contained in any retraction being an indication of knowledge of the irregularity, the outcome is nonetheless a deterrent, since the public decision-maker who puts an end to the procedure himself supplies the proof of his guilt.
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Summary: A provision that merely sets out the principles of freedom of access and equal treatment, such as Article 1-II of the former Public Contracts Code, now reproduced in Article L. 3 of the Public Procurement Code (Code de la commande publique), constitutes a provision whose breach may ground the offence of favouritism. That breach is completed by privileged exchanges with a bidding company and the resulting setting of the tender thresholds, the unjustified advantage lying not in the award of the contract but in the fact that its conditions were specifically tailored to the expectations and resources of that company. The offence is thus established, and the cancellation of the procedure by its perpetrator amounts to no more than active repentance, the request for which, on the contrary, served to establish awareness of the irregularity.
