ILLEGAL TAKING OF INTERESTS
LexInter | October 25, 2017 | 0 Comments

ILLEGAL TAKING OF INTERESTS

The fact, by a person holding public authority or entrusted with a public service mission or by a person invested with a public elective mandate, of taking, receiving or keeping, directly or indirectly, any interest in a company or in an operation for which it has, at the time of the act, in whole or in part, the responsibility of ensuring the monitoring, administration, liquidation or payment, is punished by five years’ imprisonment and 75,000 euros fine.
However, in municipalities with a maximum population of 3,500, mayors, deputies or municipal councilors delegated or acting as a replacement for the mayor may each deal with the municipality from which they are elected for the transfer of movable or immovable property or the provision of services in the limit of an annual amount set at 16,000 euros.
In addition, in these municipalities, mayors, deputies or municipal councilors delegated or acting as a replacement for the mayor can acquire a plot of a municipal subdivision to build their personal home or conclude residential leases with the municipality for their own accommodation. . These acts must be authorized, after valuation of the goods concerned by the service of the estates, by a reasoned deliberation of the municipal council.
In the same municipalities, the same elected officials can acquire property belonging to the municipality for the creation or development of their professional activity. The price cannot be lower than the evaluation of the domain service. The act must be authorized, whatever the value of the property concerned, by a reasoned deliberation of the municipal council.
For the application of the three preceding paragraphs, the municipality is represented under the conditions provided for by Article L. 122-12 of the Municipalities Code and the mayor, deputy or municipal councilor concerned must refrain from participating in the deliberation of the municipal council relating to the conclusion or approval of the contract. In addition, by way of derogation from the second paragraph of Article L. 121-15 of the Municipalities Code, the municipal council cannot decide to meet behind closed doors.
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Article 432-13
Is punished by two years of imprisonment and a 200,000 F fine the fact, by a person having been charged, as a public official or agent or servant of a public administration, at the very reason of his function, either of ” ensure the supervision or control of a private company, either to conclude contracts of any kind with a private company, or to express its opinion on the operations carried out by a private company, to take or receive a participation by work , advice or capital in one of these companies before the expiration of a period of five years following the end of this function.
Any participation by work, advice or capital, in a private company which owns at least 30% is punished with the same penalties. 100 of common capital or has entered into a contract comprising de jure or de facto exclusivity with one of the companies mentioned in the preceding paragraph.
For the purposes of this article, any public enterprise carrying out its activity in a competitive sector and in accordance with the rules of private law is assimilated to a private enterprise.
These provisions are applicable to employees of public establishments, nationalized companies, semi-public companies in which the State or public authorities directly or indirectly hold more than 50%. 100 of the capital and public operators provided for by law n ° 90-568 of 2 July 1990 relating to the organization of the public service of the post and telecommunications.
The offense is not constituted in the event of participation in the capital of companies listed on the stock exchange or when the capital is received by inheritance.

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