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“Bercy dreams of restricting the assumptions of liability of public accountants to a minimum”

Tribune. The reform carried out by the government on the occasion of the finance bill for 2022 is ambitious. The objective: to put in place a system of financial responsibility for public managers. Finally, one might say! Because there is already in France a judge responsible for engaging the financial liability of administrators: the Budgetary and Financial Disciplinary Court (CDBF) created in 1948.

Alas, this jurisdiction has not convinced. How could she do it with an average of four judgments delivered each year? The reasons for this weak litigation activity are multiple and all lie within the overly restrictive framework set by the 1948 law.

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In reality, the envisaged reform is twofold since it also concerns public accountants, these agents alone authorized to handle public funds within the administration. Their role was designed to limit the cases of irregular management of these funds and prevent a mayor, a prefect or any other authorizing officer (name given to those who have decision-making power to commit public funds) irregularly a public expenditure.

A unified financial accountability regime

But here too, the regime is encountering limits. One of importance and totally abnormal in a rule of law: the possibility for the minister in charge of the budget to grant the accountant a graceful remission of the decision that the account judge was able to pronounce against him. It should be understood that when there is a lack of money in the public fund, it is up to the accountant to repair this fund, out of his personal funds.

The system is balanced – however, one might say – with the possibility for the accountant to obtain that the decision claiming this reimbursement be remitted by the Minister. An astonishing situation which leads to a court decision being swept aside by an administrative authority and a French peculiarity, which cannot be found in any other European state.

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These, to put it simply, are the reasons which explain why it had become urgent to put in place a system of financial responsibility for public managers. The finance bill for 2022 refers to a draft ordinance for the establishment of this liability regime. A notable advance, it sets up a unified financial responsibility regime.

A seemingly balanced project

While two judges are competent with regard to those responsible for the use of public funds (the audit judge who are the Court of Accounts and the regional and territorial chambers of accounts for the public accountant; the Disciplinary Court budget and financial for the administrators), the project provides for a single jurisdictional scheme which will allow, within the Court of Auditors, to judge during the examination of public management all the actors of the execution budgetary.

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