Key Benefits:
Public concerned: financial market professionals.
Subject: A sanction procedure of the Autorité des marchés financiers.
Entry into force: the text comes into force on the day after its publication.
Notice: this decree amends the procedure for sanctioning the Autorité des marchés financiers. It reinforces the prerogatives of the Prosecution Authority and specifies in particular the functioning of the administrative composition procedure and the procedure for appeal against a decision of the sanctions commission.
References: This decree is taken for the purposes of sections 6 and 7 of the Act of 22 October 2010 of banking and financial regulation. The monetary and financial code, as amended by this decree, can be consulted, in its version, on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry,
Vu le monetary and financial codeincluding articles L. 621-14-1, L. 621-15 and L. 621-30;
The State Council (Finance Section) heard,
Decrete:
The monetary and financial code is thus amended:
1° In II of section R. 621-1, in the first paragraph of section R. 621-2, in II of section R. 621-4, in the fourth paragraph of section R. 621-13 and in the IV and V of section R. 621-40, the words "Government Commissioner" are replaced by the words "Treasury Director General";
2° In the second paragraph of section R. 621-5 and II and III of section R. 621-40, the words "Government Commissioner" are replaced by the words "Treasury Director General or his representative";
3° The first two sentences of section R. 621-8 are deleted; in the third sentence of the same article, the words "Government Commissioner" are replaced by the words "Treasury Director General".
After subsection 4 of the same code, a sub-section 4 bis is inserted as follows:
"Subsection 4 bis
“Administrative composition
"Art. R. 621-37-1.-The notification of grievances that includes the proposal for entry into administrative composition shall be addressed to the person under the conditions set out in the first paragraph of section R. 621-38. She states that her recipient may be informed and copied from the record to the College secretariat and may be assisted or represented by any advice of her choice.
"The recipient has a period of one month from the date of receipt of this notification to take a decision on the proposal, by registered letter with request for a notice of receipt.
"Art. R. 621-37-2.-From the acceptance of the proposal to enter into administrative composition, the agreement referred to in the third paragraph of Article L. 621-14-1 shall be entered into within four months.
"Art. R. 621-37-3.-When the agreement is validated by the college, it shall be forwarded for approval to the Chairman of the Sanctions Commission who shall, for that purpose, seize one of its sections under the conditions laid down in Article I R. 621-7.
"When the agreement is not validated by the College, the College may request the Secretary General to submit a new draft agreement to the person to whom it has been proposed to enter into an administrative composition. The new agreement shall be entered into within a period not exceeding one month from the notification of the refusal of validation. This procedure can only be implemented once.
"The decisions of the College and the Sanctions Commission are notified to the person to whom it was proposed to enter into an administrative composition.
"Art. R. 621-37-4.-The administrative composition procedure is permanently interrupted:
« 1° When the person to whom it was proposed expresses a refusal or fails to make a decision within the time limit set out in R. 621-37-1;
« 2° If agreement is not reached within the time limits referred to in Article R. 621-37-2 and the second paragraph of Article R. 621-37-3;
« 3° When the agreement is not validated by the college and is not applied to the procedure referred to in the second paragraph of Article R. 621-37-3;
« 4° When the sanctions commission refuses to homologate the agreement validated by the college;
« 5° In case of non-compliance by the signatory person.
"It is then applied to articles R. 621-38 in R. 621-42. »
I. ― Article I R. 621-45 of the same code is amended as follows:
1° The second paragraph is supplemented by the following sentence:
"The Council of State may, on the principal or incidental appeal of the President of the Autorité des marchés financiers, either confirm the decision of the sanctions commission or cancel or reform it in whole or in part, in a favourable or unfavourable sense to the person involved. » ;
2° It is added a paragraph to read:
"The incidental appeal of the President of the Autorité des marchés financiers provided for in the second sentence of the second paragraph of Article L. 621-30 shall be filed within two months from the notification to the Autorité des marchés financiers of the appeal of the sanctioned person. »
II. ― Section R. 621-46 of the same code is amended as follows:
1° The IV is replaced by the following:
"IV. ― The case is communicated to the Public Prosecutor's Office, which is notified of the date of the hearing. »
2° The V is replaced by the following:
"V. ― The first president of the Court of Appeal or his or her delegate sets out the deadlines in which the authors of the main appeal, if any, the authors of an incident appeal, and then the Autorité des marchés financiers and the other persons to whom the appeals were notified must submit their written comments and file a copy of them at the Registry of the Court of Appeal, as well as the date of the proceedings. The Registry shall notify the parties and the Autorité des marchés financiers and summon them at the hearing scheduled for the proceedings, by registered letter with a request for notice of receipt.
"The first president or his delegate orders the measures of instruction. He sees the disobedience. »
3° It is added a VI, a VII and an VIII as follows:
"VI. ― The incidental appeal of the President of the Autorité des marchés financiers, as provided in the second sentence of the second paragraph of Article L. 621-30, must be filed within two months of notification to the Autorité des marchés financiers of the appeal of the sanctioned person. This appeal shall be lodged under the conditions set out in I of this article by a statement containing the statement of the means invoked; it is notified to the parties by the court of appeal. As necessary, the deadline for exchanges may be changed by the first president or delegate.
"The Court of Appeal may, on the main appeal or incident of the President of the Autorité des marchés financiers, either confirm the decision of the sanctions commission or cancel or reform it in whole or in part, in a favourable or unfavourable sense to the person involved. »
« VII. at the hearing, the parties are heard in their submissions. When the President of the Financial Markets Authority has not appealed, the Authority may make oral submissions after the other parties. The Public Prosecutor ' s Office has the last word, except for any reply from the parties involved. »
« VIII. ― Representation and assistance of the parties and the Autorité des marchés financiers shall be exercised under the conditions established by theArticle 931 of the Civil Procedure Code.
"The decisions of the Court of Appeal of Paris or its first president are notified by the Registry, by registered letter with a request for notice of receipt. »
♪ Articles R. 621-45 and R. 621-46 of the Monetary and Financial Code, in their drafting from Article 3, are not applicable to proceedings pending before the Council of State and the Court of Appeal of Paris on the date of publication of this decree.
Amendments monetary and financial code Articles 1, 2 and 3 and 4 are applicable in New Caledonia, French Polynesia and the Wallis and Futuna Islands.
The security guard, Minister of Justice and Freedoms, and the Minister of Economy, Finance and Industry are responsible, each with respect to it, for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done on 16 August 2011.
François Fillon
By the Prime Minister:
Minister of Economy,
finance and industry,
François Baroin
The guard of the seals,
Minister of Justice and Freedoms,
Michel Mercier
