Application of the Fair Trial Principle in Financial Markets Council Procedures: Analysis of the Council of State's Decision of 3 December 1999.
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Council of State, fair trial, Financial Markets Council, Article 6-1, European Convention on Human Rights, administrative authorities
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Abstract
Unlock the nuances of fair trial principles in financial regulatory proceedings with our in-depth analysis of the Council of State's landmark decision on December 3, 1999, in the Didier case (n° 207434). This critical examination sheds light on the applicability of Article 6-1 of the European Convention on Human Rights to the Financial Markets Council (CMF) procedures, ensuring transparency and fairness in financial disciplinary actions. Discover how this pivotal ruling impacts the rights of defendants in financial markets regulation, clarifying the balance between administrative authority and the protection of individual rights. Our detailed commentary provides insights into the evolving interpretation of fair trial rights in the context of independent administrative authorities, offering a comprehensive understanding for legal professionals, financial market participants, and scholars alike. Dive into the intricacies of administrative law, human rights, and financial regulation with our expert analysis.
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[...] The Council of State asserts, to this effect, that 'it is lawful that the Council of Financial Markets has taken as a basis the amount of profits made during the resale by SNC Dynabourse Arbitrage of the titles not offered to the public purchase offer, by relating it to the share held by Mr. Didier in the capital of this company'. It is necessary to recall that this decision was made in a context marked by numerous condemnations of France by the European Court of Human Rights for violations of the principle of a fair trial, which is why the Council of State has conducted, in the present case, a demonstration of the nature of the alleged defect in order to draw the consequences. II. [...]
[...] The nature of the organ responsible for pronouncing the sanction The CE decides that 'the Financial Markets Council, when it is seized of actions that may give rise to the sanctions provided for by Article 69 of the Law of 2 July 1996, must be considered as deciding on the merits of accusations in a penal matter in the sense of Article 6-1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, even though it is not a court in terms of domestic law, the argument that it would have ruled in conditions that would not respect the principle of impartiality recalled in Article 6-1 may, given the nature, composition and attributions of this body, be usefully invoked in support of a recourse filed with the State Council against its decision', Thus, even though the CMF is not a court it is subject to the provisions of Article 6-1 of the European Convention for the Protection of Human Rights A. The non-judicial nature of the CMF It is for the State Council to demonstrate the non-judicial nature of the CMF. [...]
[...] A defect constitutive of a violation of the principle of impartiality Recall that impartiality is a general principle of law1, which implies that the judge controls his respect without the need for a legislative text to explicitly consecrate it. For the judge, in the Didier decision of 3/12/1999, 'the argument that the CMF would have ruled in conditions that would not respect the principle of impartiality recalled in article 6-1 can, given the nature, composition and attributions of this body, be usefully invoked in support of a recourse filed before the Council of State against its decision.' The same solution was retained, on the same day, in a case involving the National Commission for Computing and Liberties, considering that the act by which the said commission 'addresses a warning to a person does not emanate from a court in the sense of Article 6-1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the provisions of this article are not applicable to the procedure followed before this commission'. [...]
[...] The obligation of the CMF to respect the principle of fair trial After determining the non-jurisdictional character of the CMF, the Council of State proceeds to demonstrate that despite the administrative nature of the council sitting in disciplinary matters, the latter is subject to the prescriptions of Article 6-1 of the European Convention on Human Rights. It asserts that the said council 'must be regarded as deciding on the merits of accusations in criminal matters within the provisions referred to in the European Convention on Human Rights'. [...]
[...] The judge states in the Didier case that 'the CMF sitting in disciplinary formation is not a court in terms of domestic law', In fact, the CMF is an organ issued from the authority of the financial markets created by the law of 1he August related to financial security. In accordance with Article L. 621-1 of this law, 'The Financial Markets Authority, a public independent authority with moral personality, ensures the protection of savings invested in financial instruments and all other investments giving rise to public appeal to savings, investor information and the proper functioning of financial instruments markets. [...]
