On 19 December 2014 the Constitutional Council, in the conditions provided for by Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (criminal chamber, judgment no. 7607 of 17 December 2014), regarding the compatibility of Article 6 of the Code of Criminal Procedure with the rights and freedoms guaranteed by the Constitution, raised by:
- Mr John L., represented by Jean-Yves Le Borgne Esq. and Patrick Bernard Esq., Attorneys at the Paris bar;
- Mr Andreas S., represented by Bernard Vatier Esq. and Antoine Kirry Esq., Attorneys at the Paris bar.
On the same day, it received an application for a priority preliminary ruling on the issue of constitutionality under the same conditions from the Cour de Cassation (criminal chamber, judgment no. 7608 of 17 December 2014), regarding the compatibility of Articles L. 465-1, L. 466-1, L. 621-15-1, L. 621-16, L. 621-16-1 and L. 621-20-1 of the Monetary and Financial Code with the rights and freedoms guaranteed by the Constitution, raised by:
- the company Daimler AG represented by Aurélien Hamelle Esq. and Denis Chemla Esq., Attorneys at the Paris bar;
- Mr Olivier A., represented by Mauricia Courrège Esq., Attorney at the Paris bar;
- Mr Alain F., represented by Thomas Baudesson Esq., Diego de Lammerville Esq. and Frédéric Peltier Esq., Attorneys at the Paris bar;
- Mr Noël F., represented by Olivier Gutkès Esq. and Lina Mroueh- Lefevre Esq., Attorneys at the Paris bar;
- Mr John L., represented by Le Borgne Esq. and Bernard Esq.;
- Mr Andreas S., represented by Vatier Esq. and Kirry Esq.;
- Mr Erik P., represented by Mario-Pierre Stasi Esq., Attorney at the Paris bar.
It also received an application for a priority preliminary ruling on the issue of constitutionality on 4 February 2015 under the same conditions from the Cour de Cassation (criminal chamber, judgment no. 652 of 28 January 2015), regarding the compatibility of Article 6 of the Code of Criminal Procedure and Articles L. 465-1, L. 466-1, L. 621-15, L. 621-15-1, L. 621-16, L. 621-16-1 and L. 621-20-1 of the Monetary and Financial Code with the rights and freedoms guaranteed by the Constitution, raised by:
- Mr Toufic A., represented by Julien Visconti Esq. and Benjamin Grundler Esq., Attorneys at the Paris bar;
- Mr Philippe B., represented by Antonin Levy Esq., Attorney at the Paris bar;
- Mr Mourad M., represented by François Artuphel Esq., Attorney at the Paris bar;
- Mr Jean-Baptiste T., represented by the SCP UGGC Avocats, Attorneys at the Paris bar;
- Mr Olivier V., represented by Aurélien Chardeau, Attorney at the Paris bar.
THE CONSTITUTIONAL COUNCIL,
Having regard to the Constitution;
Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;
Having regard to the Monetary and Financial Code; Having regard to the Criminal Code;
Having regard to the Code of Criminal Procedure;
Having regard to Law no. 99-515 of 23 June 1999 enhancing the efficacy of criminal procedure;
Having regard to Law no. 2003-706 of 1 August 2003 on financial security;
Having regard to Law no. 2005-842 of 26 July 2005 on confidence and the modernisation of the economy;
Having regard to Ordinance no. 2007-544 of 12 April 2007 on financial market instruments;
Having regard to Law no. 2007-1774 of 17 December 2007 enacting miscellaneous provisions bringing the law in the area of the economy and finance into line with Community law;
Having regard to Law no. 2008-776 of 4 August 2008 on the modernisation of the economy;
Having regard to Ordinance no. 2009-80 of 22 January 2009 on the public offering of securities and enacting miscellaneous provisions in the area of finance;
Having regard to Law no. 2009-526 of 12 May 2009 on the simplification and clarification of the law and the streamlining of procedures;
Having regard to Ordinance no. 2010-76 of 21 January 2010 merging the approval and control authorities for banks and insurers;
Having regard to Law no. 2010-1249 of 22 October 2010 on banking and financial regulation;
Having regard to the regulations of the Autorité des Marchés Financiers [French Financial Markets Authority] as in force following the ruling of 30 December 2005 approving the amendments to the general regulations of the Autorité des Marchés Financiers;
Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;
Having regard to the application for intervention filed by the Agence Française de Lutte Contre le Dopage [French Anti-Doping Agency], registered on 5 January 2015;
Having regard to the observations filed on behalf of the company Daimler AG by SCP Piwnica et Molinié, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 12 and 27 January 2015;
Having regard to the observations filed on behalf of Messrs A., F., F., L., P. and S. by SCP Spinosi et Surreau, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 12, 13, 27 and 28 January and 19 and 25 February 2015;
Having regard to the observations filed on behalf of the Caisse des Dépôts et Consignation [Deposits and Consignments Fund], a defendant in the proceedings within which the application for a priority preliminary ruling on the issue of constitutionality was made, by SCP Normand et Associés, Attorneys at the Paris bar, registered on 12 January 2015;
Having regard to the observations filed on behalf of SCA Lagardère, the party being prosecuted in the proceedings within which the application for a priority preliminary ruling on the issue of constitutionality was made, by SCP Lyon-Caen-Thiriez, Attorneys at the Conseil d’État and the Cour de Cassation, registered on 12 and 27 January and 19 February 2015;
Having regard to the observations of the Prime Minister, registered on 12, 13 and 28 January and 19 February 2015;
Having regard to the observations in intervention filed on behalf of Mr Marc F. and the company Euroland Finance by the SELAS Pardo, Sichel and Associates, Attorneys at the Paris bar, registered on 12 and 28 January 2015;
Having regard to the observations in intervention filed on behalf of Mr Luis Fernando D. and the company Sacyr Vallehermoso by the AARPI Darrois Villez Maillot Brochier, Attorneys at the Paris bar, registered on 13 January 2015;
Having regard to the observations filed on behalf of Messrs. A., B., M., and T., and on behalf of Mr Abdorahman C., Mr Jean-Patrice R. and Mr Antoine R., parties being prosecuted in the proceedings within which the application for a priority preliminary ruling on the issue of constitutionality was made, by the firm Visconti et Grundler, registered on 18 February 2015;
Having regard to the observations filed on behalf of Mr V. by AARPI Dentons Europe, Attorneys at the Versailles bar, registered on 24 February 2015;
Having regard to the documents produced and appended to the case file;
Having heard Le Borgne Esq., Piwnica Esq., Spinosi Esq., Hamelle Esq., Veil Esq., Visconti Esq. and Chardeau Esq. on behalf of the applicant parties, Normand-Bodard Esq. on behalf of the Caisse des Dépôts et Consignations, defendant, Bonan Esq. on behalf of Mr Luis Fernando D. and the company Sacyr Vallehermoso, interveners and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 3 March 2015;
Having heard the Rapporteur;
1. Considering that it is appropriate to join the applications for priority preliminary rulings on the issue of constitutionality in order to answer them by a single decision;
2. Considering that pursuant to Article 6 of the aforementioned internal regulations of 4 February 2010, only persons who are able to establish a "special interest" are eligible to file an intervention; that the Agence française de Lutte Contre le Dopage has not established a special interest to intervene in the proceedings relating to these applications for priority preliminary rulings on the issue of constitutionality; that accordingly, its intervention is not admissible;
- THE PROVISIONS REFERRED TO THE CONSTITUTIONAL COUNCIL:
3. Considering that the applications for priority preliminary rulings on the issue of constitutionality must be considered to relate to the provisions in the version applicable to the disputes in relation to which they were raised; that on the one hand, the question submitted on behalf of the company Daimler AG and Messrs A., F., F., L., P. and S. was raised within criminal proceedings concerning acts carried out in March and April 2006; that the public action was launched by an indictment of 20 November 2006; that these acts thus resulted in the commencement of sanction proceedings before the Enforcement Commission of the Autorité des Marchés Financiers, followed by the forwarding of the statement of complaints in April 2008 and concluded by a decision issued on 27 November 2009; that on the other hand, the question submitted on behalf of Messrs A., B., C., M., R., T. and V. was raised in relation to criminal proceedings concerning acts carried out between 3 and 22 September 2008; that the public action was launched by a summons of 27 April 2013; that these acts thus resulted in the commencement of sanction proceedings before the Enforcement Commission of the Autorité des Marchés Financiers, followed by the forwarding of the statement of complaints on 16 February 2010 and concluded by a decision issued on 17 February 2011;
4. Considering that it follows from the above that the Constitutional Council has been apprised of Article 6 of the Code of Criminal Procedure as in force following the enactment of the aforementioned Law of 23 June 1999, Article L. 465-1 of the Monetary and Financial Code as in force following the enactment of the aforementioned Law of 26 July 2005, paragraphs II and III of Article L. 621-15 of the Code as in force following the enactment of the aforementioned Law of 4 August 2008, paragraphs I, III-bis, IV and V of the same Article as in force following the enactment of the aforementioned Ordinance of 21 January 2010 and paragraphs I, III-bis, IV, IV-bis and V of the same Article as in force following the enactment of the aforementioned Law of 22 October 2010, Articles L. 621-15-1, L. 621-16, L. 621-16-1 and L. 621-20-1 of the same Article as in force following the enactment of the aforementioned Law of 1 August 2003 and Article L. 621-20-1 as in force following the enactment of the aforementioned Ordinance of 12 April 2007;
5. Considering that Article L. 466-1 of the Monetary and Financial Code was amended by the Law of 1 August 2003, the aforementioned Ordinance of 22 January 2009 and the Law of 22 October 2010; that given the lack of precision in the referral decision concerning the version applicable to the dispute, it may be concluded that the Constitutional Council has been seized solely of this Article as in force following the enactment of the Law of 22 October 2010;
6. Considering that pursuant to Article 6 of the Code of Criminal Procedure, as in force following the enactment of the Law of 23 June 1999:
"The public prosecution for the imposition of a penalty is extinguished by the death of the defendant, by limitation, amnesty, the repeal of the criminal law and res judicata.
"However, if a prosecution resulting in conviction has revealed the falsity of the judgment or decision which declared the public prosecution extinguished, the prosecution may be resumed; the limitation period is then treated as suspended from the date when the judgment or decision became final until that of the conviction of the person guilty of forgery or the use of forgery.
"It may also be extinguished by compounding where the law expressly so provides, or by a conditional suspension of prosecution; the position shall be the same in the event of the withdrawal of a complaint, where such complaint is a condition necessary to prosecution";
7. Considering that pursuant to Article L. 465-1 of the Monetary and Finance Code as in force following the enactment of the Law of 26 July 2005: "Executives of a company referred to in Article L. 225-109 of the Commercial Code, or individuals who, in the course of their business or the performance of their functions, obtain inside information concerning the prospects or the situation of an issuer whose securities are traded on a regulated market or the likely performance of a financial instrument which is admitted to trading on a regulated market, and either directly or through an intermediary, carry out or facilitate one or more transactions before the public has knowledge of said information shall incur a penalty of two years' imprisonment and a fine of 1,500,000 euros, which amount may be increased to a figure representing up to ten times the amount of any profit realised and shall never be less than the amount of said profit.
"Whoever, through the practice of his profession or the performance of his functions, obtains inside information concerning the prospects or the situation of an issuer whose securities are traded on a regulated market or the likely performance of a financial instrument which is admitted to trading on a regulated market and discloses said information to a third party outside the normal framework of his profession or his functions shall incur a penalty of one year's imprisonment and a fine of 150,000 euros.
"Any individual, other than those referred to in the previous two paragraphs, who knowingly obtains inside information concerning the situation or the prospects of an issuer whose securities are traded on a regulated market or the likely performance of a financial instrument which is admitted to trading on a regulated market, and either directly or indirectly carries out or facilitates a transaction or discloses said information, or allows it to be disclosed, to a third party before the public has knowledge thereof, shall incur a penalty of one year's imprisonment and a fine of 150,000 euros, which amount may be increased to a figure representing up to ten times the amount of the profit realised and shall never be less than the amount of said profit. Where the information in question is used in the commission of a crime or an offence, the sentence shall be increased to seven years' imprisonment and a fine of 1,500,000 euros if the amount of the profit realised is below said figure."
8. Considering that pursuant to Article L. 466-1 of the Monetary and Finance Code as in force following the enactment of the Law of 22 October 2010: "The courts which hear proceedings relating to offences committed by companies whose financial securities are admitted to trading on a regulated market or are offered to the public on a multilateral trading facility which is subject to the laws or regulations intended to protect investors from insider dealing, price manipulation and the dissemination of false information, or from offences committed in connection with transactions on a market in financial instruments or assets referred to in paragraph II of Article L. 421-1, may request the opinion of the Autorité des Marchés Financiers at any stage in the proceedings. Said opinion must be requested where the proceedings are instituted pursuant to Article L. 465-1";
9. Considering that pursuant to paragraphs II and III of Article L. 621-15 of the Monetary and Finance Code as in force following the enactment of the Law of 4 August 2008: "II.-Following an adversarial procedure, the Enforcement Commission may impose sanctions on the following entities:
"a) Entities referred to in subparagraphs 1 to 8 and 11 to 15 of paragraph II of Article L. 621-9 for any breach of professional obligations established by laws, regulations or conduct of business rules approved by the AMF, without prejudice to the provisions of Article L. 613-21;
"b) Individuals under the authority of, or acting on behalf of, an entity referred to in subparagraphs 1 to 8 and 11 to 15 of paragraph II of Article L. 621-9 for any breach of professional obligations established by laws, regulations or conduct of business rules approved by the AMF, without prejudice to the provisions of Article L. 613-21;
"c) Whoever, in France or abroad, has engaged in or attempted to engage in insider dealing or has engaged in price manipulation, the dissemination of false information or any other violation referred to in the first subparagraph of paragraph I of Article L. 621-14, where such acts relate to a financial instrument issued by a publicly traded person or entity or admitted to trading on a market for financial instruments or for which an application for admission to trading on such a market has been submitted, as provided for in the General Regulation of the Autorité des Marchés Financiers;
"d) Whoever, in France, has engaged in or attempted to engage in insider dealing or has engaged in price manipulation, the dissemination of false information or any other violation referred to in the last subparagraph of paragraph I of Article L. 621-14, where such acts relate to a financial instrument admitted to trading on a regulated market of another Member State of the European Union or party to the European Economic Area Agreement or for which an application for admission to trading on such a market has been submitted.
"III.-The sanctions applicable are:
"a) For the entities referred to in subparagraphs 1 to 8, 11, 12 and 15 of paragraph II of Article L. 621-9, a warning, a reprimand, or a temporary or permanent ban on providing some or all of the services previously provided; in lieu of, or in addition to, said sanctions, the Enforcement Commission may also impose a fine of up to 10 million euros or ten times the amount of any profit made; the money shall be paid into the guarantee fund to which the sanctioned entity is affiliated or, failing that, to the Public Exchequer;
"b) For individuals acting under the authority or on behalf of an entity referred to in subparagraphs 1 to 8, 11, 12 and 15 of paragraph II of Article L. 621-9, a warning, a reprimand, the temporary or permanent suspension of their professional licence, and a temporary or permanent ban on conducting some or all of their business activities; in lieu of, or in addition to, said sanctions, the Enforcement Commission may also impose a fine of up to 1.5 million euros or ten times the amount of any profit made in the case of the practices referred to in subparagraphs c) and d) of paragraph II, or, in other cases, up to 300,000 euros or five times the amount of any profit made; the money shall be paid into the guarantee fund to which the entity on whose authority or behalf the sanctioned individual was acting is affiliated; failing that, the money shall be paid to the Public Exchequer;
"c) For entities other than those referred to in paragraph II of Article L. 621-9 who perpetrate acts referred to in subparagraphs c) and d) of paragraph II, fines of up to 10 million euros or ten times the amount of any profit made; the money shall be paid to the Public Exchequer.
"The amount of the sanction must be commensurate with the seriousness of the violations and any advantages or profits gained from said violations.
"The guarantee fund referred to in subparagraphs a) and b) may, as provided for in its bylaws and subject to a maximum amount of 300,000 euros per annum, allocate a portion of the revenue it receives from the fines imposed by the Enforcement Commission to educational actions in the financial sphere. "
10. Considering that pursuant to paragraphs I, III-bis, IV and V of Article L. 621-15 of the Monetary and Finance Code as in force following the enactment of the Ordinance of 21 January 2010: "I.-The Board shall examine the report of the investigation or control drawn up by the Autorité des Marchés Financiers' staff, or the request submitted by the Chairman of the Autorité de Contrôle Prudentiel [Prudential Supervisory Authority].
"If it decides to initiate sanction proceedings, it shall notify the complaints to the individuals concerned. It shall forward the statement of complaints to the Enforcement Commission, which shall appoint a rapporteur from among its members. The Enforcement Commission cannot hear a case based on acts that took place more than three years previously if no action seeking to uncover, declare or punish said acts was carried out during said period.
"In urgent cases, the Board may suspend the activities of the entities referred to in subparagraphs a) and b) of paragraph II against whom sanction proceedings are initiated.
"If the Board sends the report referred to in the first paragraph to the Public Prosecutor, it may decide to make that fact public.
"III bis.-Under the terms laid down in a decree issued following consultation with the Conseil d'État, the disqualification of a member of the Enforcement Commission shall be decided at the request of the respondent if there is good reason to question the impartiality of said member.
"IV.-The Enforcement Commission rules on the basis of a reasoned decision. The rapporteur shall leave the chamber. No sanction may be imposed unless the respondent or his representative has been heard or, failing that, duly summoned
"V.-The Enforcement Commission's decision shall be made public in the publications, journals or media that it indicates, unless its publication could seriously disrupt the financial markets or cause undue damage to the parties involved. The cost thereof shall be borne by the entities sanctioned. "
11. Considering that, in the version in force following the enactment of the Law of 22 October 2010, paragraphs I, III-bis, IV, IV-bis and V of Article L. 621-15 provide that: "I.-The Board shall examine the report of the investigation or control drawn up by the Autorité des Marchés Financiers' staff, or the request submitted by the Chairman of the Autorité de Contrôle
Prudentiel [Prudential Supervisory Authority].
"If it decides to initiate sanction proceedings, it shall notify the complaints to the individuals concerned. It shall forward the statement of complaints to the Enforcement Commission, which shall appoint a rapporteur from among its members. The Enforcement Commission cannot hear a case based on acts that took place more than three years previously if no action seeking to uncover, declare or punish said acts was carried out during said period.
"A member of the Board, after examining the investigation or inspection report and taking part in the decision to initiate sanction proceedings, shall be convened to the hearing. He shall attend without voting rights. He may be assisted or represented by the Autorité des Marchés Financiers' staff. He may submit observations in support of the complaints made and propose a sanction.
"The Enforcement Commission may hear any AMF employee.
"In urgent cases, the Board may suspend the activities of the entities referred to in subparagraphs a) and b) of paragraph II against whom sanction proceedings are initiated.
"If the Board sends the report referred to in the first paragraph to the Public Prosecutor, it may decide to make that fact public.
"III bis.-Under the terms laid down in a decree issued following consultation with the Conseil d'État, the disqualification of a member of the Enforcement Commission shall be decided at the request of the respondent if there is good reason to question the impartiality of said member.
"IV.-The Enforcement Commission rules on the basis of a reasoned decision. No sanction may be imposed unless the respondent or his representative has been heard or, failing that, duly summoned
"IV-bis.- The Enforcement Commission's hearings are held in public.
"However, without consultation or at the request of the respondent, the Chairman of the session hearing the case may prevent the public from accessing the chamber for the duration of all or part of the proceedings for the sake of public order, national security or if a public hearing would compromise business secrecy or any other legally-protected secret.
"V.-The Enforcement Commission's decision shall be made public in the publications, journals or media that it indicates, in a format commensurate with the offence committed and the sanction imposed. The cost thereof shall be borne by the entities sanctioned. However, where its publication could seriously disrupt the financial markets or cause undue damage to the parties involved, the Commission's decision may prohibit its publication. "
12. Considering that pursuant to Article L. 621-15-1 of the Monetary and Finance Code as in force following the enactment of the Law of 1 August 2003: "If a complaint notified pursuant to the second subparagraph of paragraph I of Article L. 621-15 is likely to constitute an offence referred to in Articles L. 465-1 and L. 465-2, the Board shall immediately forward the investigation or inspection report to the Public Prosecutor for the Regional Court of Paris.
"Where the Public Prosecutor for the Regional Court of Paris decides to prosecute on the basis of the facts thus received, he shall inform the Autorité des Marchés Financiers thereof without delay.
"The Public Prosecutor for the Regional Court of Paris may send the Autorité des Marchés Financiers, as a matter of routine or at the latter's request, a copy of any document from proceedings relating to the facts thus received. ";
13. Considering that pursuant to Article L. 621-16 of the Code as in force following the enactment of the Law of 1 August 2003: "Where the Enforcement Commission of the Autorité des Marchés Financiers has imposed a financial penalty which has become final before the criminal court judge has given a final ruling on the same facts or related facts, the latter may order that the financial penalty be set off against the fine he imposes";
14. Considering that pursuant to Article L. 621-16-1 of the Code as in force following the enactment of the Law of 1 August 2003: "Where a prosecution is instituted pursuant to Articles L. 465-1 and L. 465-2, the Autorité des Marchés Financiers may bring an independent action for damages. However, it cannot concurrently exercise in regard to the same entity and the same facts the disciplinary powers it holds according to this Code and the right to take civil action";
15. Considering that pursuant to Article L. 621-20-1 of the Code as in force following the enactment of the Law of 1 August 2003: "If, in the performance of its duties, the Autorité des Marchés Financiers gains knowledge of a crime or an offence, it must inform the Public Prosecutor thereof without delay and send him all relevant information, statements of offence and other documents.
"Without prejudice to the provisions of the fourth subparagraph of Article L. 621-21, the Public Prosecutor may obtain from the Autorité des Marchés Financiers all the information it holds in connection with the performance of its duties. Information may not be withheld from him on grounds of professional secrecy"; that the Ordinance of 12 April 2007 replaced the reference in the second paragraph of this Article to the fourth subparagraph of Article L. 621-21 with a reference to the "third subparagraph of Article L. 632-16";
16. Considering that the applicants object that Article 6 of the Code of Criminal Procedure violates the principle of equal treatment by the criminal law and the principles of the necessity of offences and punishments and the proportionality of punishment; that they argue that, in breach of the principle of non bis in idem, the provisions of the Monetary and Financial Code that have been contested in relation to the offence of insider dealing and insider misconduct, which enable the same conduct to be prosecuted and punished twice, violate the principles of the necessity of offences and punishments and the proportionality of punishment, the principle of the separation of powers and the respect for lawfully acquired rights; that they finally assert that the provisions that oblige the judicial authorities to obtain the opinion of the Autorité des Marchés Financiers in cases involving prosecutions for the offence of insider dealing, those that enable them to obtain the disclosure of the results of the investigation carried out by the Autorité des Marchés Financiers and those that authorise the criminal courts to take into account any decision on punishment issued by the Enforcement Commission of this Authority violate the principle of the presumption of innocence and the rights of the defence;
17. Considering that, as regards Article 6 of the Code of Criminal Procedure, the application for a priority preliminary ruling on the issue of constitutionality relates to the phrase "res judicata" appearing in the first paragraph thereof; that, as regards Article L. 466-1 of the Monetary and Financial Code, the application for a priority preliminary ruling on the issue of constitutionality relates to the last phrase thereof; that, as regards Article L. 621-15 of the Code, the application for a priority preliminary ruling on the issue of constitutionality relates to the phrase "has engaged in or attempted to engage in insider dealing or" appearing in letter c) of paragraph II and the phrase "has engaged in or attempted to engage in insider dealing or" appearing in letter d) also of paragraph II; that, as regards Articles L. 621-15-1 and L. 621-16-1 of the Code, the application for a priority preliminary ruling on the issue of constitutionality relates to the phrase: "L. 465-1 and";
- THE CONTESTED PROVISIONS OF THE MONETARY AND FINANCIAL CODE:
18. Considering that, according to the applicants, by enabling criminal prosecutions relating to conduct identical to that prosecuted before the Enforcement Board of the Autorité des Marchés Financiers to be initiated and successfully concluded, in breach of the principle of non bis in idem, these provisions violate the principles of the necessity of offences and punishments and the proportionality of punishment and the respect for lawfully acquired rights; that the applicants stress in particular that this also applies due to the similarities between the definition of insider misconduct, which is prosecuted before the Enforcement Board of the Autorité des Marchés Financiers, and the definition of the offence of insider dealing, which is prosecuted before the criminal courts; that in vesting the Autorité des Marchés Financiers with a power of criminal sanction, these provisions also violate the principle of the separation of powers; that in addition, by obliging the courts to obtain the opinion of the Autorité des Marchés Financiers in cases involving prosecutions for insider dealing offences, by permitting the courts to obtain the disclosure of the results of the investigation carried out by the Autorité des Marchés Financiers and by authorising the criminal courts to take into account any decision on punishment issued by the Authority, the principle of the presumption of innocence and the rights of the defence have been violated;
19. Considering that Article 8 of the Declaration of the Rights of Man and the Citizen of 1789 provides that: "The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offence"; that the principles thereby asserted do not relate solely to penalties imposed by the courts but also extend to any penalty with the nature of punishment; that the principle of the necessity of offences and punishments does not prevent the same acts committed by the same person from being subject to different prosecutions for the purposes of administrative or criminal sanctions in accordance with distinct bodies of rules before different courts; that, if the possibility that two procedures are initiated may result in cumulative penalties, the proportionality principle implies that the overall amount of any penalties imposed may not under any circumstances exceed the maximum tariff for any of the penalties imposed;
20. Considering that according to Article 9 of the 1789 Declaration, all persons are to be presumed innocent until proven guilty; that a general principle follows that the legislator may not establish a presumption of guilt in the area of criminal law;
21. Considering on the one hand that Article L. 621-20-1 of the Monetary and Financial Code makes provision concerning the manner in which the Autorité des Marchés Financiers must provide the public prosecutor with information concerning conduct of which it is aware that may constitute an offence and the ability of the public prosecutor to obtain disclosure of the information held by the Autorité des Marchés Financiers; that these provisions do not violate any of the requirements of constitutional law cited above;
22. Considering on the other hand, first, that Article L. 465-1 of the Monetary and Financial Code defines the offence of insider dealing as the act by any individual who either directly or through an intermediary carries out or facilitates one or more transactions using inside information concerning the prospects or the situation of an issuer whose securities are traded on a regulated market or the likely performance of a financial instrument which is admitted to trading on a regulated market, where this person acquired the information in the course of its business or the performance of its functions or was aware of its privileged status; that this Article also punishes the disclosure to a third party of the aforementioned information before it became available to the public;
23. Considering that the contested provisions from Article L. 621-15 of the Code define insider misconduct as the engagement or attempted engagement by any person in price manipulation where such acts relate to a financial instrument admitted to trading on a regulated market or on certain multilateral trading systems; that pursuant to Article 622-1 of the aforementioned regulations of the Autorité des Marchés Financiers adopted pursuant to Article L. 621-6 of the Monetary and Financial Code, any person holding privileged information must refrain from using that information by buying or selling or by attempting to buy or to sell on his or her own account or on behalf of a third party either directly or indirectly the financial instruments to which this information relates; that according to Article 622-1, any person holding privileged information must also refrain from disclosing that information to any other person outside the normal framework of his or her work, profession or functions or for purposes other than those for which it was disclosed to him or her and from recommending any other person to buy or sell or instruct the purchase or sale by another person on the basis of privileged information of the financial instruments to which this information relates; that according to Article 622-2 of the regulations, these obligations to refrain from acting apply to any person holding privileged information by virtue of certain functions or capacities and to any person holding privileged information "who knows or should have known" that it is privileged information;
24. Considering that the contested provisions are intended to punish the same conduct; that the offences of insider dealing and insider misconduct can only be committed in relation to the exercise of certain functions, and moreover may only be committed - as regards the offence of insider dealing - "knowingly" by a person holding privileged information and - for insider misconduct - by a person "who knows or should have known" that the information held amounted to privileged information; that it follows from the above that the contested provisions define and qualify insider misconduct in the same manner as the offence of insider dealing;
25. Considering secondly that Article L. 465-1 of the Monetary and Financial Code on the punishment of the offence of insider dealing is featured under the chapter of this Code dedicated to "investor protection offences"; that pursuant to Article L. 621-1 of the Code, the Autorité des Marchés Financiers must monitor "the protection of savings invested" in financial instruments, various assets and any other investment offered to the public; that accordingly, the punishment of insider misconduct and of the offence of insider dealing pursue the same single goal of protecting the proper operation and integrity of the financial markets; that such punishments of breaches of economic public order are imposed in both cases not only on professionals but also on any person who has unlawfully used privileged information; that these two punishments consequently protect the same social interests;
26. Considering thirdly that pursuant to Article L. 465-1, the perpetrator of an insider dealing offence may be punished by a penalty of two years' imprisonment and a fine of 1,500,000 euros, which amount may be increased to a figure representing up to ten times the amount of any profit realised; that pursuant to Articles 131-38 and 131-39 of the Criminal Code and L. 465-3 of the Monetary and Financial Code, if it is a natural person, the minimum level of the fine shall be equal to five times that provided for under Article L. 465-1 and the criminal court may under certain circumstances dissolve the entity; that pursuant to paragraph III of Article L. 621-15 in the version contested, the perpetrator of insider misconduct will, irrespective of whether or not it is subject to specific professional obligations defined by law, regulations or professional rules approved by the Autorité des Marchés Financiers, incur liability to a fine of 10 million euros, which amount may be increased to a figure representing up to ten times the amount of any profit realised; that, whilst only the criminal court may order that the perpetrator of an insider dealing offence be imprisoned if he or she is a natural person or be dissolved if it is a legal person, the fines imposed by the Enforcement Commission of the Autorité des Marchés Financiers may be extremely severe and may, according to the contested provisions from Article L. 621-15, amount to more than six times those that may be imposed by the criminal court for insider dealing offences; that in addition, according to paragraph III of Article L. 621-15, the amount of the sanction for insider misconduct must be commensurate with the seriousness of the violations and any advantages or profits gained from said violations and, according to Article 132-24 of the Criminal Code, the penalty imposed following a conviction for the offence of insider dealing must be commensurate with the circumstances of the offence and the personal circumstances of the perpetrator; that it follows from the above that the conduct covered by the Articles cited above must be deemed to be liable to attract penalties that may not differ in nature;
27. Considering fourthly that pursuant to the first subparagraph of Article 621-30 of the Monetary and Financial Code: "Consideration of the appeals made against the individual decisions of the Autorité des Marchés Financiers other than those relating to the individuals and entities referred to in paragraph II of Article L. 621-9, including the sanctions imposed on them, shall come within the jurisdiction of the ordinary courts"; that pursuant to Article 705-1 of the Code of Criminal Procedure: "The financial public prosecutor and the investigating judges and magistrates of Paris shall have sole jurisdiction over the prosecution, examination and judgment of the offences provided for under Articles L. 465-1, L. 465-2 and L. 465-2-1 of the Monetary and Financial Code. "; that the penalty incurred by the perpetrator of insider misconduct who is not a person or entity referred to under paragraph II of Article L. 621-9 and the penalty incurred by the perpetrator of an insider dealing offence shall both be determined by the ordinary courts;
28. Considering that it follows from the above that the penalties associated with the offence of insider dealing and insider misconduct cannot be considered to differ in nature depending upon the application of different bodies of rules before the relevant court for persons other than those mentioned in paragraph II of Article L. 621-9 of the Monetary and Financial Code; that neither Articles L. 465-1 and L. 621-15 of the Monetary and Financial Code nor any other legislative provision prevents a person other than those mentioned in paragraph II of Article L. 621-9 from being prosecuted for the same conduct before the Enforcement Commission of the Autorité des Marchés Financiers on the basis of Article L. 621-15 and before the courts on the basis of Article L. 465-1; that accordingly, Articles L. 465-1 and L. 621-15 violate the principle of the necessity of offences and punishments; that, without any requirement to examine the other objections, Article L. 465-1 of the Monetary and Financial Code and the contested provisions of Article L. 621-15 of the Code must be ruled unconstitutional; that the same applies consequently to the contested provisions from Articles L. 466-1, L. 621-15-1, L. 621-16 and L. 621-16-1 of the Code, which are inseparable from them;
29. Considering that Article L. 621-20-1 of the Monetary and Financial Code, which does not violate any right or freedom guaranteed under the Constitution, must be upheld as constitutional;
- THE CONTESTED PROVISIONS FROM ARTICLE 6 OF THE CODE OF CRIMINAL PROCEDURE:
30. Considering that according to the applicants and the interveners, by not ascribing res judicata status to a definitive decision of the Enforcement Board of the Autorité des Marchés Financiers, these provisions violate the principle of equal treatment by the criminal law and the principles the necessity of offences and punishments and the proportionality of punishment;
31. Considering that the first subparagraph of Article 6 of the Code of Criminal Procedure sets out a list of grounds for the extinction of a public action, irrespective of whether or not it had been launched at the time the reason came to light; that "res judicata" is specified as one of the grounds for the extinction of a public action; that it follows from the settled case law of the Cour de Cassation that only a definitive decision given by a criminal court ruling on a public action has the authority of res judicata in criminal matters;
32. Considering that Article 6 of the Declaration of 1789 provides that the law “must be the same for all, whether it protects or punishes”; that the legislator, which is competent to determine the rules of criminal procedure pursuant to Article 34 of the Constitution, is entitled to establish rules of procedure that differ depending on the facts, situations and persons to which they apply, provided that these differences do not create unjustified distinctions and that equal guarantees are assured to the parties to the trial;
33. Considering that, whilst it follows from the contested provisions from Article 6 of the Code of Criminal Procedure that the definitive decision by an administrative authority ruling on a penalty with the nature of punishment does not constitute a ground for the extinction of the public action, these provisions do not violate any right or freedom guaranteed by the Constitution; that the phrase "res judicata" appearing in the first subparagraph of Article 6 of the Code of Criminal Procedure must be ruled constitutional;
- THE EFFECTS OF THE RULING OF UNCONSTITUTIONALITY:
34. Considering that the second paragraph of Article 62 of the Constitution provides: "A provision declared unconstitutional on the basis of Article 61-1 is revoked as from the publication of the decision of the Constitutional Council or at a later date stipulated in the decision. The Constitutional Council determines the conditions and the limits under which the effects produced by the provision may be questioned"; that, if, as a matter of principle, the declaration of unconstitutionality must benefit the party submitting the priority question on constitutionality and the provision ruled unconstitutional cannot be applied to proceedings in progress at the time the decision of the Constitutional Council is published, the provisions of Article 62 of the Constitution grant the Council the power both to set the date of repeal and to defer its effects as well as to provide for the review of the effects that the provision generates before this declaration takes effect;
35. Considering on the one hand that the Constitutional Council does not dispose of a general power of appreciation and decision making of the same nature as that of Parliament; that it does not fall to it to indicate the amendments that should be adopted in order for a situation of unconstitutionality to be remedied; that the immediate repeal of Article L. 465-1 of the Monetary and Financial Code and of the contested provisions from Article L. 621-15 of that Code would have the effect, by removing the unconstitutionality ascertained, of preventing any prosecution and putting an end to prosecutions brought against persons who have committed acts classified as insider dealing or insider misconduct, irrespective of whether or not they have already been prosecuted before the Enforcement Commission of the Autorité des Marchés Financiers or the criminal courts, and would thus entail manifestly excessive consequences; that accordingly, there are grounds to defer the repeal of Article L. 465-1, the contested provisions from Article L. 621-15 and those from Articles L. 466-1, L. 621-15-1, L. 621-16 and L. 621-16-1, which are inseparable from it, until 1 September 2016;
36. Considering on the other hand that, in order to put an end to the unconstitutional situation established from the date of publication of this decision, no prosecutions may be initiated or continued on the basis of Article L. 621-15 of the Monetary and Financial Code against any person other than those mentioned in paragraph II of Article L. 621-9 of that Code where a prosecution has already been launched in relation to the same conduct and against the same person before the ordinary criminal courts on the basis of Article L. 465-1 of the Code or where such a court has already made a definitive ruling on a prosecution in relation to the same conduct and against the same person; that, in the same way, no prosecutions may be initiated or continued on the basis of Article L. 465-1 of the Monetary and Financial Code where a prosecution has already been launched in relation to the same conduct and against the same person before the Enforcement Commission of the Autorité des Marchés Financiers on the basis of the contested provisions from Article L. 621-15 of the Code or where the Board has already made a definitive ruling on a prosecution in relation to the same conduct and against the same person,
HELD:
Article 1. - The intervention by the Agence Française de Lutte Contre le Dopage is inadmissible.
Article 2. - The following provisions are constitutional:
- in the first subparagraph of Article 6 of the Code of Criminal Procedure, the phrase "res judicata";
- Article L. 621-20-1 of the Monetary and Finance Code as in force following the enactment of Law no. 2003-706 of 1 August 2003 on financial security and in the version currently in force.
Article 3. - The following provisions are unconstitutional:
- Article L. 465-1 of the Monetary and Finance Code as in force following the enactment of Law no. 2005-842 of 26 July 2005 on confidence and the modernisation of the economy;
- the last phrase of Article L. 466-1 of the same Code, as in force following the enactment of Law no. 2010-1249 of 22 October 2010 on banking and financial regulation;
- in letters c) and d) of paragraph II of Article L. 621-15 of the same Code, as in force following the enactment of Law no. 2008-776 of 4 August 2008 on the modernisation of the economy, the phrase "has engaged in or attempted to engage in insider dealing or";
- in Articles L. 621-15-1 and L. 621-16-1 of the same Code, as in force following the enactment of Law no. 2003-706 of 1 August 2003 on financial security, the phrase "L. 465-1 and";
- Article L. 621-16 of the same Code.
Article 4. - The declaration of unconstitutionality contained in Article 3 shall take effect in the conditions specified in recitals 35 and 36.
Article 5. - This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for in Section 23-11 of the Ordinance of 7 November 1958 referred to hereinabove.
Deliberated by the Constitutional Council in its session of 17 March 2015, sat on by: Mr Jean-Louis DEBRÉ, President, Ms Claire BAZY MALAURIE, Ms Nicole BELLOUBET, Mr Michel CHARASSE, Mr Renaud DENOIX de SAINT MARC, Mr Hubert HAENEL, Mr Lionel JOSPIN and Ms Nicole MAESTRACCI.
Announced on 18 March 2015.