Public markets: the administrative judge controls the risk of conflict of interest when awarding a public contract!
CE May 9, 2012, Municipality of Saint Maur des Fossés, Req.N ° 355756
The existence of links between an elected representative of a municipality and a tenderer to a public contract launched by that municipality can not in itself justify the exclusion of the application of the undertaking since it does not result from the that the elected representative would have participated in the tender commission that awarded the contract.
According to the provisions of article 432-12 of the Penal Code: " The fact, by a person holding public authority or performing a public service mission or by a person holding a public office, to take, receive or keep, directly or indirectly, any interest in a company or in an operation of which it has, at the time of the act, in all or part, the charge of ensuring the supervision, the administration, the liquidation or the payment, is punished of five years of imprisonment and 75000 euros fined ".
From a material point of view, the offense of illegal taking of interest is automatically retained when the interest is " taken and kept Where the person has a personal, pecuniary or pecuniary interest in the business in which the business he supervises or controls. This illegal take-up of interest may be direct or indirect. It is direct when the elected representative takes part in the deliberation of the community in which he sits and who, for example, awards a contract to a company of which he is the leader or which is directed by a person in his family .... indirectly when there are interested interposed persons.In a judgment of 6 December 1996, Sté LAMBDA, the Council of State has already had the opportunity to recall that the Penal Code is an integral part of the administrative legality and that the plea alleging breach of the provisions of the Penal Code by an administrative act operates before the administrative court (EC 6 December 1996, Sté LAMBDA, application No. 167502 with the conclusions of the Public Rapporteur Denis PIVETEAU) . Any administrative act that is likely to generate a conflict of interest is therefore illegal.