Le délit de favoritisme s'applique aux marchés publics anciennement soumis à l'ordonnance du 6 juin 2005

The offense of favoritism applies to public contracts formerly subject to the order of 6 June 2005

by gmorales the 12 March 2016 | Category: Public markets
Le délit de favoritisme s'applique aux marchés publics anciennement soumis à l'ordonnance du 6 juin 2005 Le délit de favoritisme s'applique aux marchés publics anciennement soumis à l'ordonnance du 6 juin 2005

Cass.crim February 17, 2016, Mr.Bastien X and others. Judgment No. 549
In this case, the Criminal Chamber of the Court of Cassation considers that Article 432-14 of the Penal Code which punishes the offense of favoritism must also apply to contracts governed by the provisions of Ordinance No. 2005-649 of 6 June 2005, even though these provisions do not expressly refer to these contracts, on the basis of the principles of constitutional value of freedom of access to public procurement and equal treatment of candidates (Cass.crim. 17 February 2016, judgment no. 549, appeal No. 15-85.363)

Rule # 1: Some reminders about the origin of the crime of favoritism

In a perspective of moralisation of public life, the public authorities created, by the law of January 3, 1991, the offense of favoritism aimed at repressing the attacks on the freedom of access of candidates in the public markets by allowing to sanction the breaches of the rules of advertising and call for competition.
This law was later amended several times by the law of 29 January 1993 on the prevention of corruption and the transparency of economic life and public procedures and by the law of 8 February 1995 on public procurement and public service before being codified in Article 432-14 of the Penal Code which provides that "is punishable by two years imprisonment and 30,000 euros fine does it by a person depositary of public authority or responsible for 'a public service mission or with a public elective mandate or performing the functions of representative, administrator or agent of the State, local authorities, public institutions, joint-interest companies of national interest responsible for a public service mission and local joint-venture companies or by any person acting on behalf of any of those mentioned above to procure or attempt to procure rui an unjustified advantage by an act contrary to laws or regulations designed to guarantee the freedom of access and equality of candidates in public contracts and public service delegations'.

Rule 2: the scope of the offense of favoritism

Order No. 2015-899 of 23 July 2015 relating to public contracts, which transposes into domestic law Directives 2014/24 and 2014/25 of 26 February 2014, puts an end to the uncertainties regarding the application of the offense of favoritism to the contracts submitted. to the ordinance n ° 2005-649 of June 6, 2005 since its article 102 repeals this order and submits from now on to the same rules of publicity, competition and execution the entities which previously fell under its regime or that of the Code public procurement.

The offense of favoritism now applies to all contracts whether they are made by public-law legal entities, private-law legal entities which have been set up specifically to satisfy needs of general interest or organizations private law with legal personality constituted by contracting authorities with a view to carrying out certain joint activities and therefore all entities formerly subject to the order of 6 June 2005.

In concrete terms, these are the contracting authorities referred to in Article 10 of Ordinance No. 2015-899 of 23 July 2015, namely:

  1. Legal persons of public law;
  2. Legal persons under private law which have been set up specifically to satisfy needs of general interest having a non-industrial or commercial character, of which:
    a) The activity is financed mainly by a contracting authority;
    (b) the management is subject to control by a contracting authority;
    (c) The administrative, management or supervisory body is composed of members more than half of whom are appointed by a contracting authority;
  3. Private law bodies with legal personality constituted by contracting authorities with a view to carrying out certain activities jointly. -

And the contracting entities referred to in Article 11 of the Ordinance which are:

  1. the contracting authorities as well as the public companies which exercise one of the activities of network operator defined in article 12 (gas, electricity, portable water, transport ...),
  2. bodies governed by private law which benefit, by virtue of a lawful provision, from special or exclusive rights which have the effect of reserving to them the exercise of one of the activities of network operator.

Rule 3: the offense of favoritism also applies to contracts below the thresholds of formalized procedures

The circular of the Ministry of Justice of March 4, 2002 (CRIM 2002-06 G3 / 04-03-2002) already recalled that the markets below the thresholds of the formalized procedures are not excluded from the scope of the offense of favoritism: " The offense of favoritism may also be created when a contract is awarded without prior formalities. Indeed, as previously stated [...], one of the innovations of the new public procurement code is to define rules of general scope, applicable to all public contracts, including contracts concluded without formalities. prerequisites. These rules, in order to recall them, include the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures (Article 1), the precise and prior definition of the needs to be satisfied (art. 5), the choice of the most economically advantageous tender (Article 53). Accordingly, the breach of a particular substantive rule in connection with the award of a contract without prior formalities may, subject to the sovereign interpretation of the case-law, be continued on the basis of favoritism ".

The circular of the Ministry of Justice of 22 February 2005 confirms this solution: "As indicated in the aforementioned circular of 4 March 2002, the unjustified use of the procurement procedure carried out according to a procedure adapted by the unlawful splitting of the same Several operations may, as in the past, be prosecuted criminally (Cass Crim 30 June 1999, Bull Crim No. 4460). The same will apply to the violation of the rules relating to the publicity of tendering procedures.
Moreover, while the new public procurement code intended to submit contracts awarded in accordance with a procedure adapted to the general principles governing public procurement (freedom of access to public procurement, equal treatment of candidates, transparency), it does not has made it clear that the obligations deriving from these principles must be implemented in accordance with the rules laid down in this Code [...]. ".

The contracting authority must therefore be particularly vigilant with regard to a situation which, while exempting it from the regulatory constraints of formalism, nevertheless requires it to respect the fundamental principles of public procurement. This requirement implies increased responsibility as well as respect for a true ethic. In this relatively abstract regulatory context, the traceability of operations can only be strongly recommended in order to avoid any unjustified questioning.

It should be noted that the increases in the thresholds made by the successive reforms of the Public Procurement Code do not have the effect of retroactively regularizing the contracts awarded previously (Court of Cassation, 28 January 2004, Appeal No 02-86597). Bull, Crim 2004, No 23 at 103: "On the grounds that [...] the defendant can not rely on the application to his case of the provisions of Article 28 of Decree No 2001/210 of 7 2001 that public contracts can now be passed without prior formalities when the threshold of 90 000 euros excluding taxes (590 361.30 francs) has not been exceeded, since it is a regulatory text that has not provided for 'retroactive effect. "). In other words, in the absence of an express stipulation, a text can not retroact, and a text of regulatory value such as the public procurement code is only valid for the future (Min.Rep. # 13289, JO Senate September 30, 2004, 2233).

Rule n ° 4: The three conditions necessary to constitute the crime of favoritism

Three conditions are necessary to constitute the offense of favoritism: an unjustified advantage is granted, or attempted to be, to a specific economic operator (1st condition), by an act contrary to the laws and regulations in force at the time of the award. of conrat (2nd condition), which aims to guarantee freedom of access and equality between candidates (3rd condition).

Rule # 5: Persons who may be subject to the offense of favoritism

Article 432-14 of the Penal Code covers three categories of persons: public officials, persons with public elected office, and public or private persons acting on behalf of a public person within the framework of a public market. This list is not exhaustive and allows to include any person who intervenes at any moment of the procedure in any form whatsoever and who influences the choice of the successful tenderer.

Thus, are particularly concerned by this offense:

  • The executive of the contracting authority (Court of Cassation, 19 October 2005, Appeal No. 04-87312);
  • The chairman of the tender committee not only because of his vote but also for the manner in which he exercised his presidency (Cass, 19 October 2005, abovementioned appeal);
  • The Director General of Services, in the event that he takes an active part in the preparation or the proposal of decisions taken by others (Cass Crim 20 April 2005, Appeal No. 04-028292);
  • The agent who artificially splits the orders, who controls the deliveries and the invoices sent to the payments department and who preselects the holders of the orders knowing that in view of his experience his technical advisory opinions are most often followed in committee (Cass. 29 June 2005, Appeal No. 04-84602);
  • The coordinator of a group of public commissions (Cass.crim 7 April 2007, BJCP, n ° 39/2005, p.134);
  • The consulting firms responsible for analyzing the tenders on behalf of the contracting authority are also liable for the offense when they take charge of the analysis of the applications and the offers.

Note that the delegation of signature attributes the sole ability to sign, on behalf of the delegate, to a named person, the delegate. As such, the delegation of signature does not relieve the delegator of his competence: he will always have a power of evocation. The delegate does not act in his name but in the name of the delegate, mayor, president of the general council, director of establishment etc ... .. In addition, he is supposed to act under his supervision and responsibility. the provisions of Article 121-1 of the Penal Code according to which "no one is liable solely for his own acts", the criminal judge shall first and foremost seek the immediate offender, that is to say the delegate who commits directly and materially the act incriminé.

However, the prosecution, if any, against the delegate does not exclude those that could also be brought against the delegator. In a judgment dated 28 February 1956, the Court of Cassation laid down the principle of vicarious liability (Cass Crim, 28 February 1956, JCP 1956, II, 9304: "In principle, no is punishable by personal injury [...] However, criminal liability may arise vicariously in exceptional cases where certain legal obligations impose the duty to take direct action on the facts of the case. an auxiliary or a subordinate. "

Therefore, if the mayor of a municipality has not supervised the exercise of the delegation of his deputy, he may then be guilty of negligent negligence in unintentional crimes and may be prosecuted as author mediate, even complicit in the offense.

Can also be pursued any accomplice of such an offense, that is to say any person who assists or gives assistance to the principal author of the offense by an act previous or concomitant with the offense facilitating its commission or consuming the offense ( case of consulting firms or project management).

Finally, any person guilty of concealment of the offense of favoritism may be prosecuted, that is to say any person who has benefited from the proceeds of such an offense (the economic operator who benefited from the situation).

Rule # 6: The main risk areas

The risks of failure may relate to all stages of the procurement process.

Before launching the consultation

At this stage of the procedure, the main difficulties lie in the definition of the needs and the choice of the procedure to be implemented.

As stated in Article 27 of the Public Procurement Code, the public purchaser can not avoid the application of the code by splitting his purchases or by using methods for calculating the estimated value of the contracts or framework agreements other than than those provided by the code.
In other words, even though the buyer is expressly invited to adopt specific rules of calculation with reference to the characteristics of his activities, he must nevertheless be able to justify their relevance with regard to the type of procedure initiated, and ensure that they did not have the effect of circumventing a formalized procedure. These new provisions are in fact a new risk for buyers.

In a recent ministerial response, the government recalls that buyers can choose to create their own nomenclature consistent with their actions, or to refer to the nomenclature resulting from the decree of 13 December 2001, while stating that "this disappearance clearly in the logic of simplification of rules and accountability of buyers. Beyond this stated objective of simplification, it is important to remember the notion of "accountability", and to ensure that it does not derive a real criminal risk for buyers who engage in a specific nomenclature approach . The essential point is that, in the event of litigation, the buyer can justify his choice (Min.Repr., 09178, JO Senate Q 4 December 2003, p 3000: "Sensitive to the difficulties encountered by the public purchasers in the application of Article 27 of the Public Procurement Code or its associated nomenclature, the Government has sought to standardize and simplify the regime for the assessment of the thresholds for the supply and services markets. The reform of the public procurement code currently being drafted simplifies the provisions of Article 27 and removes the mandatory reference to the nomenclature annexed to the interministerial decree of 13 December 2001. Public purchasers will be invited to assess even the homogeneous nature of the supplies they intend to purchase by reference to the characteristics of their activity, and they may choose, if necessary, to create their own nomenclature. n consistency with their action or refer to the aforementioned nomenclature for information only. This disappearance is clearly part of the logic of simplification of rules and accountability of buyers that underlies this reform project. ").

The Criminal Division of the Court of Cassation also had the opportunity to sanction the drafting of a set of specifications oriented (Court of Cassation, April 6, 2005, Appeal No. 00-80418) or the participation of the future holder in the definition. need (Cass Crim 20 April 2005, Appeal No. 00-83017) so that public purchasers will have to be particularly vigilant in the context of the implementation of the prior consultations provided for in Article 40 of Directive 2014 / 24 / EU of 26 February 2014, which will be transposed into national law in order to avoid abuse through negligence or manipulation of certain economic operators.

During the admissibility of applications and the examination of tenders

At this stage of the procedure, other deficiencies may be noted: regularization of applications by the authority designated by the contracting authority beyond the time limits, possible acceptance of offers outside official deadlines, direct solicitation of offers In the same way, the negotiations must be conducted in a transparent manner, while respecting the equality of the candidates. The traceability of transactions therefore seems once again recommended (Cass, 19 October 2005, Appeal No. 00-87312).

After the award of the contract

Two hypotheses may arise, each presenting a risk of qualifying as a crime of favoritism:

First hypothesis:

the lack of advertising and competitive bidding beyond the threshold of € 25,000 excluding tax. The main risk is related to the award of several adapted procedure contracts below the threshold of € 25,000 excluding tax with the same supplier without advertising or competition. Example: The mayor of commune Y places an order of 9 000 euros HT to replace several computers of the Town Hall. As allowed by Article 28 of the Code des Marches Publics, the amount of needs being less than 25 000 euros HT, the mayor addresses directly without competition and without advertising to the company of his choice. Two months later, the mayor decides to acquire new computers to equip all the services of the Commune. He contacts again the company which sends him a new invoice of 20.000 euros HT. The total amount of orders then amounts to the sum of 29 000 euros HT and proves above the threshold of 25 000 euros HT which allowed him to abstain from all advertising and all put in competition. In this case, is it permissible to consider that the business has been favored? Theoretically, yes.

Second hypothesis:

exceeding the threshold of 209,000 euros excluding taxes for local authorities or 135,000 euros excluding taxes for the State. The initial amount of the contract can also be initially fixed at less than 209 000 euros HT or 135 000 euros HT while its actual cost is much higher. The use of a formalized procedure is required when the threshold is crossed without a new MAPA can regularize the situation.

Rule # 7: The Intentional Element of the Offense

The intentional element is fundamental in the recognition and punishment of the offense. In a judgment of 14 January 2004, the Court of Cassation recalled that the intentional element of the offense of favoritism was not to favor a candidate, but simply to perform "knowingly", an act contrary to the provisions relating to the freedom of access and the equality of the candidates "(Cass Crim 14 January 2004, appeal no 03-83396) .In this case, the Court of Cassation considers that the element intentional is characterized by" the knowingly performed an act to the contrary. "More specifically, the intention is implied in the commission of an" act to the contrary "when the author could not have known the existence of the offense. with regard to his profession, his knowledge of the regulations or his relations.

This reference to the notion of "knowingly" will be assessed on a case-by-case basis (Court of Cassation, 29 June 2005, Appeal No. 00-846002). In particular, in the field of public procurement law, it will make it possible to defend a criminal defense in view of the vagueness of the regulations, the absence of case law, or the functions or training of persons in question. In this respect, it should be pointed out that the judge appreciates the degree of awareness of having an unjustified advantage and the level of knowledge of the public procurement code in order to sanction those responsible (TGI Paris, 7 January 1998, TGI Nantes, December 19, 1997, CA Colmar, September 11, 1997).

Thus, the judge considers that there are functions where ignorance is not admissible: a mayor can not take refuge behind the ignorance of the procedure of call for tender (Crime Cass 15 September 1999, 98- 87588; Cass. Crim. 24 October 2001, 01-81089; Cass. Crim. 8 March 2006, No. 05-85276).

Rule # 8: The offense of favoritism can be combined with other offenses

The same fact may constitute both a crime of favoritism and another offense, in particular when the person responsible for the market enjoys a benefit that may amount to an illegal taking of interest (article 432-12 of the Code). criminal law) or corruption (Article 433-1 of the Criminal Code). In a judgment of 29 June 2011 (Court of Cassation, 29 June 2001, No. 10-87498), the Criminal Division of the Court of Cassation upheld the conviction for the offense of favoritism and unlawful mayor who had signed an amendment to a public dredging contract for a port to carry out additional work, at the request of another elected, to allow the boat of a member of the family of the latter to access at the port. The violation of the provisions of the Code des Marches Publics to guarantee the freedom of access and the equality of the candidates (signature by the mayor of an amendment without intervention of the CAO) is at the origin of an unjustified advantage and characterizes the crime of favoritism. The same facts also characterize an illegal taking of interests to the extent that they do not favor only the beneficiary operator of the market but also the elected one.

Rule n ° 9: the rules of prescription of the crime of favoritism

According to Article 7 of the Code of Criminal Procedure, the prescription of public prosecution begins to run on the day of the commission of the offense. However, jurisprudence, to avoid impunity of fact decided to delay the starting point of the prescription of certain crimes "on the day when the offense appeared and could be found under conditions allowing the exercise of the public action" . The case law considers that a crime is occult when there are difficulties in discovering the offense, as the clandestinity of the operation makes it impossible to know the facts or the impossibility of denouncing the offense (Cass, Crim 30 June 2004, Appeal No. 03-86287). Both the offense of favoritism and the ancillary offenses of concealment and complicity in favoritism are continuous offenses and are only time-barred from the day they appeared when the acts complained of were concealed or occultly performed ( Cass.Crim., October 27, 1999, Godard Marcel, Criminal Dr. March 2000, No. 27). For example, the offense can be found only at the request for transmission of an analysis report of applications and offers by an unsuccessful candidate since only the information provided in this document can in certain cases allow to detect the favoritism.

Contracts formerly subject to Order No. 2005-649 of 6 June 2005 are therefore liable to the offense of favoritism "before" and "after" the entry into force of Ordinance No. 2005-649 of 6 June 2005 and this without limitation in the case of contracts whose results have not been made public ............ ..

Judgment No. 549 of 17 February 2016 (15-85.363) - Court of Cassation - Criminal Chamber - ECLI: EN: CCASS: 2016: CR00549
Favoritism public markets
Rejection
Favoritism public markets
________________________________________
Applicant (s): Mr Bastien X ...; and other

________________________________________

Having regard to the memorandum produced, common to the applicants;
On the single ground of appeal, alleging violation of Articles 6 and 7 of the European Convention on Human Rights, Articles 114 and 432-14 of the Criminal Code, Order No. 2005-649 of 6 June 2005, of the directive n ° 2004/18 of March 31st, 2004, articles preliminary, 80-1, 591 and 593 of the code of penal procedure;
"In that the investigating chamber dismissed the motion for annulment and said there be no need for the cancellation of a part of the proceedings examined up to D 127;
"On the grounds that, by his complaint filed with civil party, filed on February 10, 2013, the union SNPCA-CFE-CGC denounced the circumstances and conditions of award of various contracts for the provision of services, passed between 2008 and 2011 by France televisions and various consulting companies created and run by former executives of this institution, such as the simplified share company Bygmalion SAS, created in 2008 and directed by MY .. until January 1, 2011, former member of the management of FTV until 2008, carrying out services of "Internet watch, mail to viewers, preparation of files and language elements for the Secretary General, strategic support of the group FTV"; that a judicial investigation was opened May 24, 2013, the heads of favoritism, illegal catch of interest and complicity of illegal catch of interest; that several people like MZ .., president of France televisions, of August 2005 to August 2010, and MA .. general secretary will be put under examination, of the chief of favoritism, that MX .. co-director and shareholder of the company Bygmalion, and this company will be put under investigation for concealment of the offense of favoritism, in their capacity as signatory respective of these conventions or as having initiated them with regard to MZ ..; that, on the possible lack of legal basis of the prosecution, it is up to the court here seized to decide on this question, on which depends the continuation of the investigations and the prosecutions engaged; that the law n ° 200-719 of August 1st, 2000, modifying that of September 30th, 1986, relative to the freedom of communication, created in its article 44, the company France televisions, company constituted in the general interest, which pursues, since the law of 3 December 1986, public service missions (article 43-11); that pursuant to Article 47, the State holds the entire capital of the company France Télévisions and program companies, that, according to Article 47-1, France Télévisions and its subsidiaries are subject to the legislation on public limited companies, except as otherwise provided, that its board of directors comprises twelve members appointed for five years, that this body has a chairman and a general director; that finally France televisions is subjected to the economic and financial control of the State; that, the law 2009-258 of March 5, 2009, came to modify or supplement the law of August 1, 2000, as for the audio-visual communication and the new public service of the television, that this text redefines the mission of France televisions, which answers to public service missions, as laid down in Article 43-11 and states that the main source of funding for France Télévisions is the product of the contribution to the public audiovisual sector, that this law takes up the principle that The State holds the entire capital of the companies France Télévisions and Radio France and the company in charge of audiovisual outside France and that the presidents of these companies are appointed by decree for five years, after obtaining the assent of the Higher Council of the audiovisual sector and the competent parliamentary committees (Article 13); that the order n ° 2005-649 of June 6th, 2005 relating to the contracts awarded by certain public or private persons, not subject to the code of the public markets (CMP), transposed several directives, among which those n ° 2004/18 / CE of the 31 March 2004, relating to the coordination of procedures for the award of public works, supply and service contracts, which Article 1 defines the contracts and framework agreements subject to this Order; whereas Article 3 lists the contracting authorities, including bodies governed by private law or bodies governed by public law, which have legal personality and which are created specifically to satisfy needs in the general interest, having a character other than industrial or commercial; Article 6 of that Order lays down the principle for these powers or contracting entities, their submission and respect for the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures; that all the applicants to the cancellation of the present procedure for lack of legal basis, do not dispute that France televisions fulfills the legal characteristics mentioned above that the order of 6 June 2005 is applicable to France televisions and markets that it had to conclude over the period considered; that the order n ° 2005-649 of June 6, 2005, in its version applicable at the time of the facts, like in that applicable at December 31, 2009, in particular, with the provisions it establishes, aims: considering the penal code, in particular , its articles 222-38 ... and 450-1, that the adverb, in particular, indicates that this enumeration is not exhaustive; whereas Law No 91-3 of 3 January 1991 on the transparency and regularity of contract procedures and subjecting the award of certain contracts to advertising and tendering rules; It must be inferred from the preambles that this text is not exclusively applicable to public contracts, as expressly referred to in Article 6 of the aforementioned ordinance and as called for by Community law, which allows a broader approach to the term public contract; that the terms of this article are indeed, as the civil party argues, to be closer to those of Article 1 of the CMP: it is these same fundamental principles of public procurement which are recalled in Article 6 of the Order of 6 June 2005; in fact, under Article 1-II of the Public Procurement Code "Public contracts and framework agreements subject to this Code respect the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures. These principles make it possible to ensure the efficiency of public procurement and the proper use of public funds. These obligations are implemented in accordance with the rules laid down in this code "; that, moreover, the Court of Cassation invites to punish the non respect of the provisions of the order of June 6, 2005 by the application of the incriminating text of article 432-14 of the penal code; that indeed in its annual report of 2008, the Court of Cassation goes in the sense of an inclusion of the order of June 6, 2005 in the field of application of the crime of favoritism; that in this report, the Court of Cassation states without ambiguity: "Article 432-14 of the Criminal Code criminalizes discriminatory practices characterized by an act contrary to the legislative or regulatory provisions intended to guarantee the freedom of access and the equality of candidates in public procurement and public service delegations. It is for the courts on the merits to characterize the existence of such an act, in particular by specifying the legal framework of the relevant market and the legal or regulatory obligations alleged to have been breached (Crim., 10 March 2004, Bull Crim., 2004). , No. 64, Appeal No. 02-85.285; Crim., January 17, 2007, Appeal No. 06-43.067), it is of little importance in this regard that the breached norm is a provision of the Public Procurement Code stricto sensu or a legal standard. or supplementary regulation subjecting public or private persons, not subject to such a code, to competitive tendering requirements imposed by Community law (see in particular Order No 2005-649 of 6 June 2005 on contracts awarded by certain public or private persons not subject to the Code des Marches Publics) "; that previously, by its decision of 14 February 2007, the same court had already ruled that even in cases where the Public Procurement Code does not require an advertising or tendering procedure, the offense of favoritism non-respect of the fundamental principles of public procurement set out in Article 1 of the Code des Marches Publics; whereas, therefore, the concept of public contracts, which includes the principle of freedom of access to public contracts, the equal treatment of candidates and the principle of transparency of candidates and the principle of transparency of procedures, concern all contracts awarded by legal persons with a public-interest or public-service mission, the remuneration of which will be provided by the contracting authority or the contracting entity within the meaning of the order of 6 June 2005; that the contracts concluded between 2008 and 2011 concluded between France televisions, company of private law, governed by the right of the private persons, certainly, but that this company is invested with a mission of public service, that the State holds the entirety of its capital, that its essential financial resources come from the audiovisual levy, that France televisions is subject to the economic and financial control of the State that it is, therefore, impossible to argue that the markets for the provision of services, in particular, as in the present case, those made by France Télévisions with a private law partner, the Bygmalion company, are private law contracts, subject exclusively to private law; that, if the representatives of France televisions admit that these contracts fall under the order n ° 2005-649 of June 6, 2005, they can not ignore the requirements of article 6 of this text, according to which the markets and the agreements -frames subject to the present order respect the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures, and that these principles make it possible to ensure the effectiveness of public procurement and the good use of public money; that consequently, it must be logically deduced that the non-respect of this text, which refers unequivocally to the principle of the public order and to its accessory declensions can not be sanctioned by article 432-14 of the penal code envisaging the offense of favoritism; that, therefore, the violation of the provisions of the order of 6 June 2005 referred to above must be sanctioned by the provisions of Article 432-14 of the Criminal Code, and that therefore there is indeed a repressive text of a criminal nature constituting one of the bases of the prosecutions initiated by the indictment of May 24, 2013; that this indictment, which meets the legal requirements of its existence, which is undisputed, does not need to be canceled, but on the contrary constitutes the legal basis for the prosecutions initiated on May 24, 2013; that finally, based on a text of repression, ie Article 432-14 of the Criminal Code and the order of 6 June 2005, the indictments of society Bygmalion and MX .. pronounced in view of these texts do not need to be annulled, as the applicants do not protest against the absence of serious or concordant indications within the meaning of Article 80-1 of the Code of Criminal Procedure;
"Whereas the principle of the legality of offenses and penalties, which imposes a strict interpretation of the criminal law, prohibits the extensive application of criminal law, in particular, by analogy; that the offense of favoritism provided for by Article 432-14 of the Criminal Code punishes acts contrary to legislative or regulatory provisions designed to guarantee the freedom of access and equality of candidates in public contracts and delegations of service public; that by refusing to cancel the indictments of the applicants for the offense of concealment favoritism while in the absence of any reference to the ordinance n ° 2005-649 of June 6, 2005, the principle of interpretation the criminal law prohibited the extension of the application of the provisions of Article 432-14 of the Criminal Code to the repression of contracts which are neither public contracts nor public service delegations, the Chamber of violated the aforementioned texts ";
Whereas it follows from the judgment and the documents of the proceedings that the National Union of Communication and Audiovisual Personnel CFE-CGC (SNPCA-CFE-CGC) filed a complaint and filed a civil action, in particular, the charge of infringement of the freedom of access and the equality of the candidates in the public markets and of concealment of this offense, against the leaders of the limited company France Télévisions (FTV), which would have concluded, with several providers, including Bygmalion company, led by Mr. Bastien X ..., former employee of FTV, many service contracts without prior competition, in violation of the provisions of Order No. 2005-649 of 6 June 2005 on contracts awarded by certain public or private persons not subject to the Public Procurement Code; that the investigating judge has put in examination, on the one hand, the head of favoritism, MM. Patrick Z ... and Camille A ..., respectively president and secretary general of France televisions, on the other hand, of the chief of reception of this offense, MX .. and the company Bygmalion; subsequently, the latter have lodged an application for the annulment of the proceedings;
Whereas, in order to rule out the ground of nullity taken from the fact that Article 432-14 of the Penal Code applies only to contracts governed by the Code des Marches Publics, the judgment pronounces on the grounds stated in the plea;
Whereas in so determining, the Court of Appeal has made the exact application of article 432-14 of the penal code;
That indeed, it follows from the terms of this article that it applies to all public contracts and not only to the markets governed by the Code des Marches Publics, which was created after the date of entry in force of the said article as it currently stands; that these criminal provisions are intended to enforce the constitutional principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures; whereas these principles, which also constitute requirements laid down by European Union law, govern the whole of public procurement; that it follows that the ignorance of the provisions of the order n ° 2005-649 of June 6, 2005, relative to the contracts passed by certain public or private persons not subject to the code of the public markets, and, in particular, its Article 6, which recalls the same principles, is included in the forecasts of Article 432-14 mentioned above;
From which it follows that the means must be rejected;
And whereas the judgment is regular in form;
DISMISSES the appeals;