B.F.D.C.

The Budget and Finance Disciplinary Court (BFDC) is a specialised administrative jurisdiction charged with sanctioning violations related to public finance.

Although affiliated with the Court of Accounts, the institution is a separate financial jurisdiction. In point of fact, the BFDC is an independent jurisdiction made up of an equal number of members of the Conseil d’Etat and Presidents of the Regional Chamber of Accounts. It is presided over by Didier Migaud, First President of the Court of Accounts, who is also President of the first section of the BFDC. Olivier Fouquet, President of the finance section of the Conseil d’État, is Vice-President of the BFDC and presides over the second judgment section. Jean-François Bénard, Public Prosecutor at the Court of Accounts, performs the functions of public prosecutor at the BFDC.

The BFDC, created by the law of 25 September 1948 “for the purpose of sanctioning management misconduct committed against the central government and various bodies and creating a budget disciplinary court”, is now governed by the Public Finance Courts Code. The main violations it may sanction include breach of rules related to revenue and expenditure implementation and the management of assets of entities within its jurisdiction (Article L. 313-4 of the Public Finance Courts Code) and the granting of an unfair advantage to a third party (Art. L. 313-6 of the same code).

Pursuant to Article L. 312-1 of the Public Finance Courts Code, the BFDC has jurisdiction to try any person affiliated with the office of a member of the government, any civil servant or civil or military employee of the central government, local governments, their public institutions and associations of local authorities, and any representative, director or employee of other entities audited either by the Court of Accounts or by a Regional Chamber of Accounts. Members of the government may not be tried by the Court, and local elected authorising officers may be tried only in certain exceptional cases set out in the Public Finance Courts Code.

Matters may be referred to the BFDC, through the office of the public prosecutor, by the President of the National Assembly, President of the Senate, Prime Minister, Finance Minister, other members of the government for acts attributable to civil servants and employees under their authority, the Court of Accounts and the Regional Chambers of Accounts. In addition, the Public Prosecutor at the Court of Accounts may refer matters to the BFDC on his own initiative.

The sanctions that it imposes, which are of neither a criminal nor disciplinary nature, consist of fines. The Budget and Finance Disciplinary Court may also choose to publish its conviction decisions in the Official Journal.

Since it is an administrative jurisdiction, the BFDC’s decisions may be appealed to the Conseil d’État.

The Budget and Finance Disciplinary Court (BFDC) is a specialised administrative jurisdiction charged with sanctioning violations related to public finance.

Although affiliated with the Court of Accounts, it is a separate and independent financial jurisdiction whose members come from both the Conseil d’État and the Court of Accounts. It differs from the other public finance courts (Court of Accounts and Regional Chambers of Accounts) in several respects: first of all, the BFDC does not have the non-judicial oversight powers of the Court of Accounts or the Regional Chambers of Accounts, given that it is exclusively a court; secondly, while the judicial powers of the public finance courts are limited to judgment of the accounts kept by public accountants – except in cases of de facto management – the BFDC has general powers to judge all individuals involved in public management.
Although it has certain characteristics of the criminal courts, it is not considered as such because it is an administrative jurisdiction whose decisions may be reviewed by the Conseil d’État. The sanctions imposed by the BFDC consist of fines and, where relevant, publication of the decision in the Official Journal.

According to the Constitutional Council (Const. c. 3-III-2005, no. 2005-198 L), the Budget and Finance Disciplinary Court is a court of original jurisdiction that is a hierarchy of courts on its own.

The BFDC was created by Law 48-1484 of 25 September 1948 “for the purpose of sanctioning management misconduct committed against the central government and various bodies and creating a budget disciplinary court” in order to sanction certain types of personal misconduct committed by civil servants, public employees or similar individuals, in the course of their duties, against the central government, various public bodies or certain entities financed by public funds. Following numerous amendments made subsequent to this law, the provisions that now apply to this court were consolidated by Law 95-581 of 24 July 1995, which constitutes the legislative section of Book III of the Public Finance Courts Code. A regulatory section of the Public Finance Courts Code was added to this section in 2005.

The law stipulates that the First President of the Court of Accounts serves as President of the BFDC, and the President of the finance section of the Conseil d’État as Vice-President. The BFDC is comprised of an equal number of Presidents of the Regional Chamber of Accounts and members of the Conseil d’Etat, who are appointed for five years by a decree of the Council of Ministers. The function of public prosecutor is performed by the Public Prosecutor at the Court of Accounts, who may be assisted by the Advocates General at the Court of Accounts and by government commissioners.

Cases are investigated by rapporteurs. These individuals, appointed as rapporteurs at the BFDC by order of the Prime Minister at the recommendation of the President of the BFDC, are chosen from among the members of the Conseil d’État, the Court of Accounts, the administrative courts of appeal, the administrative tribunals and the Regional Chambers of Accounts, and then assigned to cases by the President of the Court.

The BFDC is located at the Court of Accounts, which provides its secretarial services. A sworn clerk appointed by order of the Finance Minister is responsible for managing the records of the proceedings.

The BFDC has jurisdiction to try members of ministers’ offices, civil servants, employees, and representatives or directors of any entities that may be audited by the Court of Accounts. Thus, the Budget and Finance Disciplinary Court’s jurisdiction covers employees of the central government, local governments, national or local public institutions, public enterprises, Social Security institutions, entities that raise funds among the general public within the framework of national campaigns, and all entities that receive financial assistance from the central government or other public entities. More generally, the field of those under the jurisdiction of the Budget and Finance Disciplinary Court is based on the oversight powers of the Court of Accounts and the Regional Chambers of Accounts.

The BFDC therefore judges public managers who are responsible for irregularities related to public finance.
Individuals who may be called before the Court include principal or secondary authorising officers, accountants, employees charged with providing oversight or conducting audits related to revenues or expenditures (such as government auditors and financial controllers), and all those involved in management activities at a public body or entity.

However, the Court does not have jurisdiction (Article L. 312-1 of the Public Finance Courts Code) over members of the government and elected managers of local governments carrying out their duties, or other duties that are necessarily incidental to them. An exception, however, was introduced by Law 93-122 of 29 January 1993. Local elected officials may be tried by the Budget and Finance Disciplinary Court in three cases (Art. L. 312-2 of the Public Finance Courts Code): if they grant an unfair advantage to a third party to the detriment of their entity through a requisition to a public accountant; if their actions result in the entity being ordered to pay a penalty, and if they fail to comply with the obligation to implement a court decision by which the entity had been ordered to pay a sum of money (cf. Law 80-539 of 16 July 1980). Elected officials are also liable before the Court for irregularities committed in connection with duties that are not necessarily incidental to their specific functions.
Moreover, a second category of exceptions consists of individuals who perform their duties on a voluntary basis (including in particular elected administrators of Social Security entities or charitable organisations who do not hold the position of President).

The violations sanctioned by the Budget and Finance Disciplinary Court, as provided by the Public Finance Courts Code (Article L. 313-1 et seq.), include expenditures initiated in breach of financial audit rules, improper allocation of an expenditure for the purpose of concealing an over-expenditure, and an expenditure initiated by an unauthorised person.
Other individuals who may be sanctioned by the Court – with these being the main offences on which the BFDC decides – are those who violate the rules related to revenue and expenditure implementation or asset management (Art. L. 313-4 of the Public Finance Courts Code), those who knowingly and willingly fail to sign returns that they are required to submit to the tax authorities, or who submit incorrect or incomplete returns (Article L. 313-5 of the Public Finance Courts Code), and those who, in the course of their duties, grant or attempt to grant, in breach of their obligations, an unfair advantage to a third party resulting in a loss for the Treasury or the entity in question (Article L. 313-6 of the Public Finance Courts Code).

Lastly, in addition to the aforementioned actions related to non-compliance with court decisions, a final offence must be emphasised: Law 95-1251 of 28 November 1995 added to the list of violations punishable by the Court those actions which cause serious harm to a public enterprise as a result of gravely inadequate controls, acts that are clearly detrimental to the entity’s interests, and repeated omissions or negligence in the performance of their management duties (Article L. 313-7-1 of the Public Finance Courts Code).

It should be noted that individuals who may be tried by the Court are not subject to any sanctions if they can prove that they committed the improper acts in question while carrying out a prior written order from their supervisor.

The Budget and Finance Disciplinary Court sanctions the aforementioned offenders by imposing fines. It may choose to publish all or part of its decisions in the Official Journal of the French Republic.

A matter may be referred to the Court, through the Public Prosecutor, only by the authorities stipulated in Article L. 314-4 of the Public Finance Courts Code: the Presidents of the Parliamentary Assemblies, the Prime Minister, the Finance Minister or other members of the government for acts attributable to civil servants under their authority. However, most matters are referred by the Court of Accounts and the Regional Chambers of Accounts. Individuals can refer matters directly to the Budget and Finance Disciplinary Court only for acts related to non-compliance with court decisions concerning them. The Public Prosecutor has the authority to refer matters to the Court on his own initiative.

For each case, the Public Prosecutor issues a charge once the matter is referred to him (known as déféré (referral) when referred by the Court of Accounts), unless he decides to dismiss the case at this stage; in the event of an initial dismissal, the matter will never be referred to the BFDC. If, however, the Public Prosecutor refers the matter to the Court through an inquiry request (réquisitoire introductif), a rapporteur is assigned by the President of the court to investigate the matter and is given broad investigative powers (including in particular the authority to hear witnesses or impleaded parties).

The rapporteur is independent and the proceeding takes place in the presence of all parties. To ensure respect for the right of defence, throughout the inquiry, in which both sides must be presented, and throughout the proceeding following the inquiry, the impleaded parties may defend themselves and produce briefs and exhibits. They are examined by the rapporteur. They may be assisted by an attorney or counsel of their choice.

After the report is filed, the Public Prosecutor may dismiss the matter or decide that there is cause for proceedings. In this case, the file is sent for review to the minister having direct jurisdiction and to the Finance Minister. The file is then sent to the Public Prosecutor, who then has a third chance to dismiss the matter or to decide to refer it to the Court. The interested party then has a period of time guaranteed by law to become acquainted with the case file and to produce a statement of defence, if he so chooses, before the hearing is held.

Hearings are public. Individuals whose cases are referred to the Court may be assisted by an attorney or counsel of their choice. They are examined last.

The statute of limitations on acts tried by the Budget and Finance Disciplinary Court is five years from the date on which the offence occurred to the date on which the matter is referred to the Public Prosecutor. As provided by law, proceedings before the Court do not prevent criminal or disciplinary action from being taken. The Court has jurisdiction as a tribunal of both first and final instance; a petition for review or appeal of its decisions may be made to the Conseil d’État.