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. 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.
Updated: Feb. 18, 2012 (Initial publication: Feb. 8, 2012)
Thematic Report (Agriculture, Environment, Healthcare): The French ban on GMOs declared illegal by the "Conseil d'Etat" (French Council of State). Yet, the interdiction will be perpetuated, Ministers said.
Updated: Jan. 3, 2012 (Initial publication: Jan. 3, 2012)
Thesaurus : Doctrine
Dec. 20, 2011
Thesaurus : 03. French Council of State
2011, 28 nov., Association nationale des opérateurs détaillants en énergie
Updated: Dec. 14, 2011 (Initial publication: Dec. 8, 2011)
Thesaurus : Doctrine