Dec. 19, 2014
War of the priority issues of constitutionality : by decision of the 19th of Decembre 2014, the "chambre criminelle of the "Cour de cassation" (French Supreme Judicial Court)the question of the constitutionality of accumulated penalties. The Constitutional Council has it not already implicitly answered?
This is currently the great battle and no one knows the outcome.
By its jugdment Grande Stevens of 4 March 2014, the European Court of Human Rights held that a state can't punish a person for a criminal penalty and administrative penalty for the same fact, criticized in market matters.
In the movement of the "dialogue of judges," the Conseil d'Etat (French State Council) asked 27 July 2014 the Conseil constitutionnel (French Constitutional Counci) l the question of compliance from this addition to the French Constitution for financial penalty in the use of public funds. By a decision of 24 October 2014, the Constitutional Council considered that this combination was consistent with the Constitution, mainly because the administrative sanction would be a "different kind" as punishment, because each pursues a different objective.
In turn, by a judgment of 17 December 2014, the Cour de cassation (French Judicial Supreme Court) decided to refer to the Constitutional Council two priority issues of constitutionality.
The presentation of the problem by the Cour de Cassation is the following. By its terms, it shows the hostility of the Court of Cassation to the doctrine hitherto developed by the State Council and the Constitutional Council.
First, the interpretation of French law provides penal proceedings against a person for facts on which it has been exonerated by the financial regulator by the Sanctions Committee thereof. This may contradict the constitutional principle of res judicata, as incurred administrative penalties are comparable to penal sanctions.
Second, this possibility could also contradict the constitutional principles of equality, necessity of criminal law and respect of non bis in idem mechanism.
Will the Constitutional Council get easier in accordance with European design without recant ? For example, it could estimate that the cumulative sentences is eligible as soon as proportionality is respected, but the extinction of a case before a judge removes the ability to exercise the other?
Or shou Law open the wound? Finally decide to open rather multiple sides bear claw blows?
The Finance Committee of the Senate works to think in a more consistent way sanctioning powers of financial regulators need. Indeed, sanctions are tools that must be thought at first hand according to the goals that must be provided in the second part in relation to other tools the financial regulator has, in the third part in relation to the purposes and powers other authorities are responsible and have (supervisory authorities, European bodies, foreign and international judges, professional authorities).
It is in this overall vision that this storm that exceeds the glass of water must be replaced.
Dec. 18, 2014
Virtual currency is a perfect example of the difficulties of interregulation: indeed, the bitcoins are currencies created on the Internet, usually to play games, such as poker. Thus intersect banking regulation, banking supervision, regulation and control of the game, Internet regulation itself.
Dec. 15, 2014
The European Directive of 22 October 2014 ot the European Parliament and of the Council as regard disclosure of non-financial and diversity information by certain large undertaking and groupe comes from afar.
It is true the Directive of the European Parliament and the Council follows a consultation conducted for several years by the European Commission on the subject of Social Responsibility. Whatever might have said the "stakeholders", the Directive contains the same lines tham the European Commission Communication of 13 April 2011, adopted on 25 October 2011 on the topic.
It is difficult today to oppose "Hard Law" and "Soft Law": Law hardens gradually. Thus, from the "communication", we went to the "resolutions", whose status remains uncertain, both a communication firmer but less binding than a law, since resolution is only for its author ... Thus Parliament in its resolutions of 6 February 2013 'resolved' to design an "inclusive" vision of the corporate action, to dance together profitability and social justice. To get by, it must suffice to say that the Social Responsibility Company is "multidimensional" ... Guidelines of the European Commission (non-binding) will explicit. Wait and see.
Following a series of obligations on information that companies must make available "to the public and authorities." Thus, companies must do the work instead of public authorities themselves. The provisions relating to non-financial information are mandatory and standardized. They are particularly demanding on the environment.
But when the text provides more substantial obligations, such as making the activity business less polluting, the Directive simply ask the member states to encourage companies to adopt "best practices" in the field. The market itself is incitative, in particular for making boards of large corporations more diverses. Because the principle is the belief that "investor access to non-financial information is a step towards achieving the goal of effective .... Europe in the use of resources," in a regulatory context of a "smart, sustainable and inclusive" growth".
Dec. 11, 2014
Dec. 10, 2014
By decision of the 5th of November 2014, UBS, the Conseil d'État (French State Council) validates the sanctioning power of the French prudential regulator (Autorité de Contrôle Prudentiel et de Résolution - ACPR) on the internal control requirements for banks in light of constitutional principle of legality of criminal offenses and penalties, in refusing to transmit a priority question of constitutionality in this regard.
Constitutional Law will have an increasingly important role to play in regulatory Law. This is especially true since the State Council uses its power to filter itself become a sort of Constitutional Court or maybe a Supreme Court.
One can think so reading the UBS decision on the 5th of November 2014.
Indeed, to refuse to transmit to the Conseil constitutionnel (French Constitutional Council) the priority question of constitutionality formulated by UBS, the French Council of State gives what it believes to be the correct interpretation of the constitutional principle of legality of offenses and penalties in banking regulatory Law.
So to say there is no "question", the Conseil d'État says there is no "problem" because, through the interpretation it gives, the provisions of the Code Monétaire et Financier offers to the Supervisory Authority, the Autorité de Contrôle Prudentiel et de Résolution (ACPR), the power to sanction the bank for having not properly implemented its internal control, comply with the constitutional principle of legality of offenses and penalties, which is applicable in administrative repression.
But because to estimate that there is no "question", it must be said that there is no "problem", it is assumed that the High Administrative Court has acted as Constitutional Court.
We must take note. Is this really what the Constituent wanted by instituting a filter system by the constitutional law of the 23rd July 2008 establishing the priority question on constitutionality? Indeed, in this very sensitive and decisive question of repression in banking and finance, is it not at least to the French Constitutional Council itself to say the authoritative interpretation to remember that the constitutional text it is the guardian?
Dec. 9, 2014
The administration of President Barack Obama issued November 26, 2014 a draft of 25 November 2014, coming from the Environmental Protection Agency (EPA) and subject to contributions to regulate the emission of greenhouse gases.
Companies are protesting because this will increase the cost of regulation. We are now witnessing a clash between supporters of the economic strength of the country and the promoters of the environment.
The President's rationale is this: that environmental regulation is justified because it will prevent many diseases and even death from respiratory failure. However, social programs and Obamacare are the major challenges of his presidency.
Therefore, the discussion is about the relationship between "regulation" and "sector": if the Regulation is related simply to the environment, then the argument of additional financial regulation advanced by firms is relevant.
Indeed, the principle of proportionality being key in regulatory techniques, there is disproportionality between the means and the goal.
Dec. 8, 2014
The Conseil d'État (French State Council)l issued a ruling Sept. 19, 2014, Agence pour l'enseignement français à l'étranger, which does not involve a regulated sector but is very instructive for all of them.
Indeed, the term "guidelines" is common in how each and designates certain documents prepared by the regulatory authorities. These give themselves this appellation to documents made ex ante to give operators the "outline" of the future action of the regulator. Thus, the "guidelines" would produce legal certainty while maintaining flexibility, since in the future the authority will continue to set its position on a case by case basis.
This convinced the Conseil d'État, which expressed his support for the "droit souple (soft law)" in its annual report in 2013.
Now comes the case: it was necessary that the "hard right" come bless the "soft law".
In this case, was challenged before the administrative judge an "instruction" from this Agency for French Teaching Abroad for the "consideration of the financial situation of the parents" seeking a scholarship to the child. A local agency for awarding grants had rejected a request no meeting the criteria developed in the statement. Parents have acted appeal for abuse of power. They both lost before the Cour administrative d'appel de Paris (Administrative Court of Pari) that before the Conseil d'État.
However, the Council recognizes that the Agence pour l'enseignement français à l'étranger has no regulatory power. But the judgement takes in considération that:"l'instruction en cause a énoncé, à l'intention des commissions locales, des lignes directrices, sans fixer de normes à caractère général qui se serait imposée de matière impérative à ces commissions"!footnote-8 .
Triumph of soft law!
Thus, organizations, "agencies", may take "general guidelines" here which do not contain any threshold and generating no rights, on which the commission take real decisions. These are based on the first document, but because of the "flexibility" of it, the one whose solution is affected by the particular decision does'not have the right to appeal.
All the beauty and effectiveness of "soft law". The judge, after having boasted, now offers it royal way.
Dec. 5, 2014
To read the presentation (in French), click on the French flag.