Public Law – Legal Brief – April 2013

Public law – Legal Brief– April2013

Independent regulatory agencies’ sanction procedures

Since the preliminary ruling on constitutionality (question prioritaire de constitutionnalité or QPC) came into force on March 1st, 2010, the Constitutional Council (Conseil Constitutionnel) has adopted the position taken by the European Court of Human Rights and the Conseil d’Etat (France’s administrative supreme court) that French independent regulatory agencies with the power to impose sanctions must respect the principle of impartiality and the rights of the defense. In its decision of December 2, 2011, the Constitutional Council indeed found that the provisions of the French Monetary and Financial Code on the sanction procedure of the Banking Commission are unconstitutional on the grounds that they are contrary to the principles of independence and impartiality of courts (established by Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789) since they do not separate the power to prosecute from the power to impose sanctions. In a very recent landmark decision dated December 7, 2012, the Constitutional Council has stepped up its requirements by holding that a court or authority may not, on its own motion, initiate proceedings to impose sanctions or penalties. In the wake of this decision, the Conseil d’Etat, in its Groupe Canal + ruling dated December 21, 2012, upheld the principle that in any case, proceedings initiated by an authority on its own motion cannot be impartial unless they originate from a person within this authority who offers sufficient guarantees of independence from the panel that is to rule on whether to impose sanctions. Therefore, these decisions have opened up new perspectives by posing – more than ever – the question of the lawfulness of the sanction procedures used by certain independent regulatory agencies, especially when acting on their own motion. This could apply, in particular, to the Autorité de régulation des communications électroniques et des postes (telecoms regulator), the Commission de Régulation de l’Energie (energy regulator) or the Conseil supérieur de l’Audiovisuel (media regulator).
Reminder: a party to proceedings pending in a court of law may apply for a preliminary ruling on constitutionality if this party believes that the relevant statutory provisions are contrary to the rights and liberties guaranteed by the Constitution. In that case, the judge must determine whether the requirements for making such an application (i.e., that the issue is serious and new and the relevant statutory provisions were not previously validated by the Constitutional Council) are met and, if they are, allow the application to proceed. The Constitutional Council hands down its decision within three months. This procedure can therefore prove very efficient: if the Constitutional Council finds the statutory provisions to violate the Constitution, its decision will cause these provisions to be repealed and removed from the legal system. If the dispute concerns a fine imposed by an independent regulatory agency based on statutory provisions that violate the rights and liberties guaranteed by the Constitution, the authority will have to reimburse the applicant for the amount of the fine.