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Read also: The “trial EADS ‘five questions
The point that angry: the seven leaders and former leaders of EADS appearing from Friday, October 3 before the Paris court of insider trading have already been tried. That was in 2009, the Enforcement Committee of the Financial Markets Authority (AMF). The organ of repression of the stock market watchdog had then – to everyone’s surprise -. Blanked the accused
This issue was also at the heart of preoccupations before the opening of the hearing, as reported on Twitter, the reporter from World to place before the Court is asked to turn off the phones.
“We are in an unprecedented situation where a court said: “You are innocent” and that another can potentially cancel condemning my client. This is extremely serious, “, protests Frédéric Peltier, Alain Flourens lawyer, one of the executives in question. It will raise the issue at the opening of the debate.
NOT A FIRST
In France, this process is not a first : to stock exchange as in other areas (tax, professional associations …), administrative justice and criminal justice can coexist. This can lead to punish twice for the same offense.
This happened in the case of false invoices Altran. In 2007, the AMF had imposed fines ranging from 500,000 to 1 million euros to former leaders of the IT company. That did not stop the Paris court to take up the case.
September 26, five people were sentenced to suspended prison sentences and fines of up to 2 € 5 million for insider trading during the takeover bid (OPA) conducted in 2003 by Alcan Pechiney. They had also been sanctioned by the MFA in 2008
This dual system has the advantage of speed. Average it takes two to three years to establish the AMF and deal with issues against ten to twelve years penal. “This is due to the specialization of investigators of the AMF and the slightest possibility of appeal at each stage of the investigation” says one expert in these procedures.
“DOUBLE JEOPARDY”
And no question of administrative justice “on the cheap”. Since 2010, the Sanctions Committee of the AMF may impose fines of up to EUR 100 million (against € 10 million previously). “The criminal is often even less severe, because it accounts Financial sanctions already imposed by the AMF “, our expert notes
The case of double penalties are rare. less than 10 cases out of 300 since 2010
<. p> But the principle of cumulation of sanctions has been severely challenged this year. On 4 March, the European Court of Human Rights (ECHR) said the principle of non bis in idem (“not twice for the same thing”), condemning Italy in a case of dissemination of misleading information on the capital of Fiat. The judgment of the ECtHR found that the defendants already sanctioned administratively by Consob (the Italian MFA) should not have to be criminal.
This decision has caused turmoil Paris. Especially as a new EU directive on market abuse also took over in April, the principle of non bis in idem .
The decisions figure sword Damocles in France, although the Council of State and the Supreme Court regularly reaffirm the legality of the hexagonal approach.
“SWITCH” RECORDS
The result: one side or the other (administrative and criminal), we think about how to change the French system. According to AFP, an interdepartmental working group ahead today with an overview of jurisprudence.
The AMF studied the subject since July. “It would be satisfying to in a situation where administratively automatically extinguish the criminal route and vice versa. That is why it is important to take the time to Refle ction “ is the stock market watchdog.
According to our information, the preferred runway would that of a “referral” folders, just like what is practiced in the UK. Today, the AMF already transmits to the prosecutor who seem him be criminal. But continues in parallel its prosecution.
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