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?