Sur la responsabilité des comptables publics en matière de contrôle des marchés publics

On the responsibility of public accountants in matters of public procurement control

by Sébastien Palmier on January 6, 2020 | Category: Public Law
Sur la responsabilité des comptables publics en matière de contrôle des marchés publics Sur la responsabilité des comptables publics en matière de contrôle des marchés publics

CE December 6, 2019, Minister of Action and Public Accounts, req.n ° 425542

In this case, the Council of State recalls the basis of the responsibility of public accountants in matters of control of public contracts and the procedures for assessing the existence of any financial loss linked to control failures

Lesson 1: Reminder of the basis of accountants' responsibility for controlling expenditure linked to public contracts

According to article 60 I of the law of February 23, 1963 of finance for 1963 modified, the public accountants are personally and pecuniarily responsible for the controls which they are required to ensure as regards receipts, expenses related to the public markets. This responsibility is engaged as soon as a deficit or a shortage in money or values has been noted, that a revenue has not been recovered, that an expense has been irregularly paid or that, by the fact of the accountant public, the public body had to compensate another public body or a third party or had to pay a statutory clerk to produce the accounts

This system provides, in the interest of public financial order, a legal regime of pecuniary and personal liability of public accountants separate from ordinary law liability.

Thus, when the accountant's failure to fulfill his obligations has not caused financial harm to the public body concerned, the auditor may compel him to pay a non-returnable sum.

On the other hand, when the failure of the accountant has caused financial damage to the public body concerned, the accounts judge debits the accountant who then has the obligation to pay out of his own money the corresponding sum. It is up to the auditor to assess on a case-by-case basis if the failure of the accountant has caused financial damage to the public body concerned and, if necessary, to assess the extent of this damage. To that end, it must firstly determine whether there was a causal link between the damage and the default on the date when the latter was committed and, secondly, assess the amount of the damage to the date on which it decides taking into account, where applicable, elements after the default

Lesson 2: reminder of the procedures for assessing the existence of any financial loss linked to control failures

To determine whether the irregular payment of an expense by a public accountant has caused financial damage to the public body concerned, it is up to the auditor to verify, in the light of the elements submitted to him on the date on which he decides , if the accountant's proper execution of the controls incumbent on him would have made it possible to avoid payment of an expense that was not actually due.

When the failure of the accountant relates to the accuracy of the settlement of the expenditure and it resulted in an overpayment, or leads to pay an expenditure in the absence of any order to pay or a prescribed or unmatured debt , or to deprive the payment of discharge, it must be regarded as having by itself, except particular circumstances, caused a financial damage to the public body concerned.

Conversely, when the accountant's failure to fulfill his obligations in respect of the payment of an expenditure relates only to compliance with formal rules such as the exact budgetary allocation of the expenditure or the existence of the visa of the budgetary controller when it should, in the state of the applicable texts, be checked by the accountant, it must be regarded as not having by itself, except particular circumstances, caused financial damage to the public body concerned

In this case, the Court of Auditors noted that the payments were made when their amount was greater than the delegation granted to the delegates of the authorizing officer. It then ruled that the payment of a mandate signed by an authorizing officer not authorized constituted an undue expense, even in the presence of service performed, that there was no indication in the file attesting to the will of the authorizing officer responsible to grant a delegation to signatories up to the amounts paid and that, thus, the failure of the accountant had caused damage to the Treasury.

The Council of State nevertheless considers that based on the unwillingness of the authorizing officer to grant a delegation of signature to the signatories of the payment orders to characterize the existence of financial damage resulting from the payments in dispute then, on the one hand, it is common ground that these payments corresponded to services performed on the basis of a public contract and purchase orders and, on the other hand, that was established, by production of the public contract and purchase orders, the willingness of the authorizing officer to expose these expenses, the Court vitiated its judgment of error of law.


CE December 6, 2019, Minister of Action and Public Accounts, req.n ° 425542

 

Considering the following:

 

  1. Under the terms of I of article 60 of the law of February 23, 1963 of finance for 1963, in its drafting resulting from article 90 of the law of December 28, 2011 of amending finance for 2011, which defines the obligations it the public accountant has the responsibility to comply under pain of seeing his personal and pecuniary responsibility engaged: custody and conservation of funds and securities belonging to or entrusted to the various legal persons under public law with a public accountant, hereinafter referred to as public bodies, the management of funds and the movement of cash accounts, keeping the supporting documents for the accounting operations and documents as well as keeping the accounts of the accounting item they / The public accountants are personally and financially responsible for the controls they are required to ensure in terms of revenue, expenditure and assets under the conditions provided for by the general regulations on public accounting. / The personal and pecuniary responsibility provided for above is engaged as soon as a deficit or a shortage in money or in values has been noted, that a revenue has not been recovered, that an expense has been irregularly paid or that, by the act of the public accountant, the public body had to compensate another public body or a third party or had to pay a statutory clerk to produce the accounts. / (...) ". Under VI of the same article:" The personal and pecuniary responsibility provided for in I is brought into play by the minister responsible for the accountant, the minister responsible for the budget or the judge of accounts under the conditions that follow. (...) / When the accountant's failure to fulfill the obligations mentioned in I did not cause financial harm to the public body concerned, the auditor may require him to pay a fixed sum, for each exercise, taking into account the circumstances of the case. The maximum amount of this sum is fixed by decree in the Council of State according to the level of guarantees mentioned in II. / When the accountant's failure to fulfill the obligations mentioned in I caused financial damage to the public body concerned or when, as a result of the public accountant, the public body had to compensate another public body or of a third party or had to pay a statutory clerk to produce the accounts, the accountant is obliged to immediately pay out of his own money the corresponding sum. / (...) ". Under Article IX of the same article:" Public accountants whose personal and pecuniary responsibility has been brought into play in the cases mentioned in the second paragraph of VI cannot obtain the remission from the Minister for the Budget graceful of the sums charged to them. / Public accountants whose personal and pecuniary responsibility has been brought into play in the cases mentioned in the third paragraph of the same VI may obtain from the Minister responsible for the budget the free delivery of the sums charged to them. Except for the death of the accountant or compliance by the latter, under the appreciation of the judge of the accounts, with the rules of selective control of the expenses, no total graceful discount can be granted to the public accountant whose personal and pecuniary responsibility has was brought into play by the accounts judge, the Minister responsible for the budget being obliged to leave the accountant with a sum at least equal to twice the sum mentioned in the second paragraph of the said VI. / (...) ". Under the terms of article 12 of the decree of December 29, 1962 on general regulations on public accounting, then applicable:" Accountants are required to practice: / (...) B. - In terms of expenditure, control: / The quality of the authorizing officer or his delegate; / The availability of credits; / The exact attribution of the expenses to the chapters which they concern according to their nature or their object; / The validity of the claim under the conditions provided for in article 13 below; / The liberating nature of the regulations. (...) ". Finally, according to article 13 of the same decree, then applicable:" With regard to the validity of the claim, the control relates to: / The justification of the service provided and the accuracy of the calculations of liquidation; / The prior intervention of regulatory controls and the production of justifications. / In addition, insofar as the rules specific to each public body so provide, public accountants verify the existence of the visa of the financial controllers on the commitments and payment orders issued by the chief authorizing officers. / The public accountants also check the application of the prescription and lapse rules. "
  2. The provisions recalled above establish, in the interest of public financial order, a legal regime of pecuniary and personal liability of public accountants distinct from liability under ordinary law. When the accountant's failure to fulfill his obligations has not caused the public body concerned any financial damage, the auditor may compel him to pay a non-returnable sum. When the failure of the accountant has caused financial damage to the public body concerned, the judge of accounts debits the accountant who then has the obligation to pay from his personal funds the corresponding sum. It is therefore up to the auditor to assess whether the failure of the accountant has caused financial damage to the public body concerned and, if necessary, to assess the extent of this damage. To that end, it must firstly determine whether there was a causal link between the damage and the default on the date when the latter was committed and, secondly, assess the amount of the damage to the date on which it rules, taking into account, where applicable, elements after the default.
  3. To determine whether the irregular payment of an expense by a public accountant has caused financial damage to the public body concerned, it is up to the auditor to verify, in the light of the elements submitted to him on the date on which he decides , if the accountant's proper execution of the controls incumbent on him would have made it possible to avoid payment of an expense that was not actually due. When the failure of the accountant relates to the accuracy of the settlement of the expenditure and it resulted in an overpayment, or leads to pay an expenditure in the absence of any order to pay or a prescribed or unmatured debt , or to deprive the payment of discharge, it must be regarded as having by itself, except particular circumstances, caused a financial damage to the public body concerned. Conversely, when the accountant's failure to fulfill his obligations in respect of the payment of an expenditure relates only to compliance with formal rules such as the exact budgetary allocation of the expenditure or the existence of the visa of the budgetary controller when it should, in the state of the applicable texts, be checked by the accountant, it must be regarded as not having by itself, except particular circumstances, caused financial damage to the public body concerned. The accountant's failure to comply with other obligations incumbent on him, such as quality control of the authorizing officer or his delegate, the availability of credits, the production of the required supporting documents or the certification of the service performed, must be looked at as having, in principle, not caused financial damage to the public body concerned when it appears from the documents in the file, including from elements subsequent to the breaches in question, that the expenditure is based on the legal foundations to which it belonged the accountant to verify the existence with regard to the nomenclature, that the authorizing officer wanted to expose it and, if necessary, that the service has been done.
  4. It appears from the documents in the case submitted to the trial judges that Mr. B ... A ..., regional director of public finance for Brittany and the department of Ille-et-Vilaine, has taken charge of three mandates for a total amount of 113 275.33 euros for the 2011 financial year, on the basis of a public contract and purchase orders signed by persons authorized to incur these expenses on behalf of the public body concerned, and corresponding to services performed. Under charge no. 6, the Court of Auditors noted that these payments had been made when their amount was greater than the delegation granted to the delegates of the authorizing officer. It then ruled that the payment of a mandate signed by an authorizing officer not authorized constituted an undue expense, even in the presence of service performed, that there was no indication in the file attesting to the will of the authorizing officer responsible to grant a delegation to signatories up to the amounts paid and that, thus, the failure of the accountant had caused damage to the Treasury. It follows, however, from what has been said in point 3 that based on the unwillingness of the authorizing officer to grant a delegation of signature to the signatories of the payment orders to characterize the existence of financial damage resulting from the payments in dispute then, on the one hand, it is common ground that these payments corresponded to services performed on the basis of a public contract and purchase orders and, on the other hand, that was established, by the production of the public contract and purchase orders, the will of the authorizing officer to expose these expenses, the Court vitiated its judgment of error of law.
  5. It follows from the above, without there being any need to consider the other ground of appeal, that the Minister for Action and Public Accounts is entitled to request the setting aside of the judgment under appeal as, by its article 10, it constituted MA .. debtor of the sum of 113 275,33 euros increased by the interests of right for the year 2011.

 

DECIDE:

Article 1: Article 10 of the Court of Auditors' judgment of October 5, 2018 is canceled.

Article 2: The case is referred, for this measure, to the Court of Auditors.