Impartiality, Article 6 §1 ECHR, European Convention on Human Rights, Council of State, Council of Financial Markets, fair trial, criminal matters, civil rights, subjective impartiality, objective impartiality, administrative judge, administrative sanctions, rights of defense, general principle of law, ECHR Article 6, European Court, jurisdiction, domestic law, procedural fairness, judicial independence, Competition Council, guarantee of publicity, equality of arms, CEDH, Human Rights, Fundamental Freedoms, Didier, Dubus c/ France, Engel and Others v Netherlands, administrative procedure, judicial review, legal fairness, procedural guarantees, financial regulation, market supervision, legal impartiality, jurisdictional impartiality, European case law, conventionalization, de-conventionalization, internal law, external law influence
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Abstract
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Abstract
The Council of State's decision on the applicability of the impartiality principle from the European Convention on Human Rights to the Council of Financial Markets procedure.
Extract
[...] In fact, by its decision 'Didier', the Council of State proceeds to the 'de-conventionalization' of the principle of impartiality, because if the principle of impartiality is simply recalled by Article paragraph 1 of the ECHR. Administrative jurisprudence is not unaware of the principle of impartiality before this ruling. In fact, it has been judged that impartiality is a general principle of law and therefore imposes itself on all administrative authorities in particular in the exercise of their power of sanctionCE, Section April 1988, req. n° 66650). [...]
[...] By this decision, the Council of State makes a broad application of the principle of impartiality through the ECHR.) which imposes its implementation on 'courts' in a broad sense). I. Applicability of the principle of impartiality from European law by the administrative judge The judge innovates by abandoning the organic criterionA), but not all CEDH prescriptions are applicableB). A. The abandonment of the organic criterion of jurisdiction It will be demonstrated in this sub-part that the judge abandons the organic criterion to apply procedural guarantees. [...]
[...] But the function of accusation is incompatible with that of judgment. This is what is applied in this case. B. The concrete assessment of the impartiality of the rapporteur The Council of State ruled in this decision that the rapporteur can, while being endowed with investigative powers, participate in the deliberation without disregarding the principle of impartiality. By adopting this solution, the judge adopts a solution that does not necessarily conflict with nuanced European case law: impartiality, in the sense of the ECHR, is a 'facade' impartiality implying that the litigant cannot have objectively justified doubts about the impartiality of the judge. [...]
[...] La jurisprudence administrative extends this principle to the sanctions commission of the Financial Markets Authority May 2007, Société Europe Finances et Industries, req. n° 288538). In this case, the concentration of powers within the same authority does not necessarily imply the cumulation of repressive functions: the functions of accusation, investigation, and judgment can be exercised within the authority by different organs. The cumulation of investigation and judgment functions cannot be automatically prohibited in the name of the objective impartiality principle. [...]
[...] In the Didier case, the judge of the Palais-Royal conducts a careful analysis of the powers of the rapporteur before the Financial Markets Council and notes that the rapporteur does not have the power to prosecute, to formulate grievances, or to adopt coercive measures - such as searches and seizures - during the investigation, and that these powers are consistent with those that the collegial disciplinary body can itself exercise. Thus, the judge adopts a concrete approach that allows, for example, certain authorities to take up certain cases ex officio without disregarding the principle of impartiality set out in Article 6 §1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (CEDH June 2009, Dubus France, n° 5242/04). [...]
