European Court of Human Rights ruling forces AMF to reconsider sanction

The Conseil d'Etat has ruled that an ECHR decision against a French regulatory authority's sanction means that the authority (the AMF) must reconsider its decision upon the claimant's request. It had previously been thought that no such reconsideration was required. The ruling opens the door for a further avenue of challenge against AMF sanctions.

In 2002, the COB (the predecessor to the AMF) issued a decision that prohibited a company and its president from managing third party assets. This ruling was upheld before the Conseil d'Etat. In 2011¹, the ECHR held that the procedure followed before the COB and the Conseil d'Etat had violated the European Convention on Human Rights (the Convention) for a triple breach of article 6 §1 (right to a fair trial) because of 1) the inability of the claimant to request a public hearing before the COB; 2) the inability of the claimant to find out the identity of the persons forming the panel of the COB that issued the sanction, making him unable to verify the impartiality of the panel; and 3) the presence of the Government Commissioner during the deliberation of the panel before the Conseil d'Etat. Following the ECHR's ruling, the claimant asked the AMF² to revoke its decision. The AMF refused to re-examine the case on the grounds that there was no procedure provided for such a review. The Conseil d'Etat has now quashed this decision, by the AMF, for abuse of power (Abus de pouvoir). This means that, upon the claimant's request, the AMF should take into account the ECHR's ruling and reconsider whether current enforcement of the sanction would infringe the provisions of the Convention. The AMF will take into account the grounds on which the sanction is based, its effects and the nature and seriousness of the infringements of the Convention found by the ECHR in order to decide whether the sanction should be waived.

Comments

The effect of an ECHR decision in the regulatory sphere is what was at stake in this dispute. The Conseil d'Etat has consistently maintained the position, notably in two rulings of 2004³ and 2012⁴, that there are no provisions, in European law or French law, that force the French courts or authorities to overturn their final decisions following an ECHR ruling.

With this most recent decision, the Conseil d'Etat has stated that, even if it is not required to overturn its rulings following an ECHR ruling, the AMF must, at the claimant's request, still review its decision in light of the ECHR ruling. The Conseil d'Etat relied on Article 46 of the Convention, which prescribes that when the ECHR sentences a state, the state should not only compensate the injured party for its loss, but also ensure that it stops the violation. In order to stop the violation, in the present case the Conseil d'Etat held that the AMF needed to review its sanction, if such sanction was still subsisting, and to determine whether or not this sanction complied with the Convention.

It is unlikely that a claimant sanctioned by the COB under the previous procedure (which violated the Convention) could request that the sanction be reviewed because of procedural time limits and also because ECHR rulings do not have an erga omnes effect (ie they do not apply to everyone). A claimant would need its own decision from the ECHR, in order to see its sanction reviewed by the AMF.

Footnotes

_{1. ECHR, 20 January 2011 No 30183/06.
2. The COB merged with the Conseil des Marchés financiers during the proceedings, in 2003.
3. Conseil d’Etat, 11 February 2004, docket number 257682.
4. Conseil d’Etat, 4 October 2012, docket number 328502.}