All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

Article L. 621-2 of the Monetary and Financial Code details the rules concerning the composition of the Financial Markets Authority. It consists of a board, a sanctions commission, and, where applicable, specialized commissions and advisory commissions. Unless otherwise provided, the powers entrusted to the Financial Markets Authority are exercised by the board.

1) The board

The board is compose …

AMF bodies

Article L. 621-2 of the Monetary and Financial Code details the rules concerning the composition of the Financial Markets Authority. It consists of a board, a sanctions commission, and, where applicable, specialized commissions and advisory commissions. Unless otherwise provided, the powers entrusted to the Financial Markets Authority are exercised by the board.

The board is composed of sixteen members, including a president appointed by decree of the President of the Republic, a member of the Council of State designated by the vice-president of the Council of State, a member of the Court of Cassation designated by the first president of the Court of Cassation, a magistrate of the Court of Auditors designated by the first president of the Court of Auditors, a deputy governor of the Bank of France designated by the governor, the president of the Accounting Standards Authority, three members designated for their financial and legal expertise as well as their experience in public offerings of financial securities, admission of financial instruments to trading on a regulated market, and investment of savings in financial instruments, respectively by the president of the Senate, the president of the National Assembly, and the president of the Economic, Social and Environmental Council, six members designated for their financial and legal expertise as well as their experience in public offerings of financial securities, admission of financial instruments to trading on a regulated market, and investment of savings in financial instruments, by the Minister of Economy after consultation with representative organizations of industrial and commercial companies whose securities are subject to public offerings or admission to trading on a regulated market, collective investment management companies and other investors, investment service providers other than portfolio management companies, market undertakings, clearing houses, settlement system managers, and central depositories, and a representative of employee shareholders designated by the Minister of Economy after consultation with trade unions and representative associations.

The president of the AMF is authorized to act on its behalf before any court. He performs his duties full-time. The duration of his term, which is not renewable, is five years from his appointment.

The term of office for the other members, except for the Deputy Governor of the Banque de France and the President of the Accounting Standards Authority, is five years. It is generally renewable once. After the expiration of the five-year period, the members remain in office until the first meeting of the board in its new composition.

In the event of a vacancy in a seat of a member of the board other than the president for any reason, a replacement is appointed, respecting the rules of parity, for the remaining duration of the term. A term served for less than two years is not considered for the application of the established renewal rule. Finally, the president of the Financial Markets Authority appoints, after consulting the board, a board member responsible for acting as a substitute in case of vacancy or impediment.

The board meets upon the convocation of its president or at the request of half of its members . Any board member who, except in cases of force majeure acknowledged by the president, has not attended three consecutive sessions is deemed to have resigned automatically. The president of the Financial Markets Authority informs the Minister of Economy .

The board deliberates on the annual budget and its modifications during the year, the financial account and the allocation of results, the accounting and financial regulations, which are transmitted to the Minister of Economy, the general conditions of recruitment, employment, and remuneration of staff, the internal regulations and the code of ethics applicable to service personnel, the general conditions for awarding contracts, agreements, and markets; the general conditions for the use of available funds and the investment of reserves, acquisitions, exchanges, and disposals of real estate, loans, transactions beyond an amount it sets, on the proposal of the president, and donations and legacies .

The sanctions commission is responsible for imposing the sanctions mentioned in Articles L. 621-15 and L. 621-17. It comprises twelve members, including two members of the Conseil d'Etat appointed by its vice-president, two members of the Court of Cassation appointed by its first president, and six members appointed for their financial and legal expertise as well as their experience in public offerings of financial securities, admission of financial instruments to trading on a regulated market, and investment of savings in financial instruments, by the Minister of Economy after consulting representative organizations of industrial and commercial companies whose securities are subject to public offerings or admission to trading on a regulated market, collective investment management companies and other investors, investment service providers other than portfolio management companies, market undertakings, clearing houses, settlement system managers, and central depositories. Two representatives of employees of companies or establishments providing investment services other than portfolio management companies, collective investment management companies, market undertakings, clearing houses, settlement system managers, and central depositories mentioned in 1° of I of Article L. 441-1, are appointed by the Minister of Economy after consulting representative trade unions. It includes an equal number of women and men. The failure to notify the parties of a change in the composition of the sanctions commission, which deprives them of the opportunity to exercise the right of challenge guaranteed by the provisions of Article R. 621-39-2 of the Monetary and Financial Code, infringes on the right to a fair trial .

The functions of a member of the sanctions commission are incompatible with those of a member of the board.

The president is elected by the members of the sanctions commission from among the two members of the Council of State and the two members of the Court of Cassation. They may also preside over sections of six members that the sanctions commission may potentially establish.

The term of office for members of the sanctions commission is five years. This term is generally renewable once. After the expiration of the five-year period, members remain in office until the first meeting of the sanctions commission in its new composition. In the event of a vacancy for any reason, a replacement is appointed in accordance with the aforementioned parity rules for the remainder of the term.

The sanctions commission meets upon the convocation of its president when it sits in plenary session and upon the convocation of the president of the relevant section in other cases. It can only deliberate in the presence of at least seven members when sitting in plenary session and at least three members when sitting in section . Any member of the sanctions commission who, except in cases of force majeure recognized by the president, has not attended three consecutive sessions is deemed to have resigned automatically. The president of the sanctions commission informs the Minister of the Economy .

3) Specialized commissions and advisory commissions

Under conditions set by decree in the Council of State, the board may delegate authority to specialized committees formed within it and chaired by the president of the Financial Markets Authority to make decisions of an individual nature. The board may also establish advisory committees, in which it may appoint experts, if necessary, to prepare its decisions.

Pursuant to Article R. 621-3 of the Monetary and Financial Code, when the board establishes a specialized commission, it determines the matters in which it authorizes the commission to make individual decisions and its composition. Each specialized commission includes, in addition to the chairman, at least five members. The decision is published in the Official Journal of the French Republic. When several specialized commissions are authorized for the same matter, the chairman of the Financial Markets Authority allocates the cases among them. Finally, the chairman of the Financial Markets Authority reports to the next board meeting on the decisions adopted by each specialized commission.

Paris, 24 October 2013, LawLex202300000697JBJ.

CMF, Art. R. 621-7, I, para. 1. - See, for applications, CE, 29 March 2010, LawLex202300001698JBJ, considering that Article R. 621-7 of the Monetary and Financial Code establishes a quorum rule and not an imparity rule, so that the decision made by four members of the commission cannot be annulled on this ground alone; Cass. com., 19 January 2010, LawLex202200011501JBJ, specifying that the fact that one of the members of the sanctions commission recuses themselves due to a personal conflict of interest with one of the parties does not preclude the application of the provisions of Article R. 621-7 of the Monetary and Financial Code, which considers this member present for the quorum; CE, 13 July 2011, LawLex202300000693JBJ, holding that the sanctions commission does not rule in an irregular section formation solely because no member from the category of representatives of employees of companies or establishments providing investment services was present.

Company Law (en cours)

159. AMF bodies

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159. AMF bodies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise