Dec. 2, 2011

Thesaurus : 01. French constitutional Council

French constitutional Council

2011, 2 December, "Banque populaire Côte d'Azur"

To read the decision (in French), click here.

This decision seems have no practical interest, only for the bank in question since the declaration of unconstitutional dropped prosecutions of which it was subjected. In addition, the Council states that all pending cases should be dropped from the moment that was not a final judgement occurred.

But it may seem to have only historical interest, since the French law of 4 August 2008 relative à la modernisation de l’économie  (on the modernization of the economy) led by the Order of January 21, 2010 the Banking Commission remplacement by the "Autorité de Contrôle Prudentiel-ACP" (Prudential Supervision Authority).


The order, drawing lessons from the jurisprudence of the European Court of Human Rights, Dubhus, provided within it functional separation between the prosecuting and sanctioning bodies.


But the decision of the Constitutional Council remains interesting.


First, because it asserts that the Authority is an administrative court, which stems from the same sections of Monetary and Financial Code, but which also follows from the general theory of procedural law, since the body statue criminal matters.


Secondly, because, referring to Article 16 of the Declaration of Human Rights that guarantee free rights, there is no constitution, the Council concludes expressly that "the principle of independence and impartiality of the courts arising from Article 16 ".


Thus, by successive impregnation, independence and impartiality of the regulators, when they take the form of jurisdictions (regulators are increasingly juridictionnalisant) is both more and located above in the hierarchy of legal norms and increasingly stringent for regulators.

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