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Company Law (en cours)

Pursuant to the first paragraph of Article L. 621-30 of the Monetary and Financial Code, the examination of appeals against individual decisions of the Financial Markets Authority, other than those, including sanctions pronounced against them, relating to professionals subject to its control , falls under the jurisdiction of the Paris Court of Appeal. Conversely, appeals against individual decisio …

Appeals against individual decisions of the AMF

Pursuant to the first paragraph of Article L. 621-30 of the Monetary and Financial Code, the examination of appeals against individual decisions of the Financial Markets Authority, other than those, including sanctions pronounced against them, relating to professionals subject to its control , falls under the jurisdiction of the Paris Court of Appeal. Conversely, appeals against individual decisions made by the AMF concerning approvals or sanctions that involve the persons and entities mentioned in II of Article L. 621-9 are, in accordance with Article R. 621-45 of the Monetary and Financial Code, brought before the Council of State, according to the procedures provided by the Code of Administrative Justice .

In accordance with the last paragraph of Article L. 621-30, decisions issued by the sanctions commission may be appealed by the sanctioned persons and by the chairman of the Financial Markets Authority, after agreement from the board. In the event of an appeal by a sanctioned person, the chairman of the AMF may, under the same conditions, file an incidental appeal, in which he may raise grievances not upheld by the sanctions commission . However, in the event of an appeal by the chairman of the AMF, the sanctioned person, if they have not themselves filed an appeal within the legal time limits, does not have an incidental appeal . If interested third parties can appeal against an individual decision of the AMF, they do not have such a right regarding decisions issued by the sanctions commission, which only the sanctioned person and the chairman of the AMF can contest . They also cannot voluntarily intervene in support of the appeal filed by the sanctioned person .

Appeals before the Paris Court of Appeal do not have a suspensive effect, unless the court decides otherwise. In such a case, it may order a stay of execution of the contested decision if it is likely to result in manifestly excessive consequences. The manifestly excessive nature of the consequences of the provisional execution of such a decision must be assessed in relation to the situation of the sanctioned person, without the need to analyze the chances of success of the appeal for annulment or modification of this decision . Similarly, the Council of State considers that the requirements of effective appeal do not imply that the effect of the sanctions imposed by the sanctions commission of the Financial Markets Authority should be deferred pending the outcome of judicial appeals against them, even if this sanction is accompanied by a publication .

The time limit for appeals against individual decisions made by the AMF is ten days, except in matters of sanctions, where it is two months. It runs, for the persons subject to the decision, from the date of notification and, for other interested parties, from the date of publication . The posting of these decisions on the AMF's website triggers the appeal period for third parties. The date of posting is expressly mentioned on the website . The AMF ensures effective public access to its site and the continuity of online posting throughout the appeal period; it also ensures the preservation and archiving of the decisions posted online . When appeals against the AMF concern an individual decision related to a public offer, the court seized rules within five months from the declaration of appeal .

Like the Paris Court of Appeal , the Council of State may, upon the principal or incidental appeal of the President of the Financial Markets Authority, either confirm the decision of the sanctions commission, or annul or amend it in whole or in part, in a manner favorable or unfavorable  to the person concerned. The parties and the Financial Markets Authority have the option to be assisted by an attorney at the Council of State and the Court of Cassation.

Paris, 26 November 2008, LawLex202300000700JBJ, holding that the Paris Court of Appeal has sole jurisdiction to rule on practices attributed to actors who are not authorized investment service providers in France and who do not conduct their activities there within the meaning of 1° of Article L.621-9, II of the Monetary and Financial Code.

CE, 21 March 2016, LawLex201600000652JBJ, emphasizing that the opinions, recommendations, warnings, and positions adopted by the AMF in the exercise of its missions may be subject to an appeal for abuse of power before the administrative judge, when they are likely to produce significant effects, notably of an economic nature, or are intended to significantly influence the behavior of the persons to whom they are addressed.

The power of reformation of the Paris Court of Appeal, however, only concerns sanction decisions and not decisions declaring the compliance of a public offer, See Cass. com., 5 July 2017, LawLex202300006601JBJ, Rev. dr. banc. 2018, Study 3, note KOUHAIZ.

CE, 12 March 2014, LawLex202300000692JBJ, considering that the administrative judge may increase the amount of the fine imposed by the AMF's sanctions commission to penalize two breaches wrongly dismissed by the latter.

Paris, 12 May 2016, LawLex202300000682JBJ. - See similarly, for the same solution, before the Conseil d'Etat, CE, 11 December 2015, LawLex202300000522JBJ. - Similarly, Paris, 7 November 2013, LawLex202300000727JBJ, emphasizing that the company sanctioned for irregularities related to information on its accounts cannot seek to amend the decision to criticize the exoneration of its statutory auditor, since only the president of the AMF can, within the framework of his appeal, request an aggravation of the sanction or its imposition on a person exonerated by the sanctions commission.

Paris, 22 April 2021, LawLex202300006368JBJ, considering that the absence of such a remedy does not violate the principle of equality of arms.

Paris, 15 October 2020, LawLex202300000730JBJ. - Cf. also Cass. com., 11 July 2006, LawLex202300000164JBJ, holding that the personal nature attached to the sanctions of the supervisory authority implies that their challenge is reserved for the person subject to them, even if they are in judicial liquidation, and that a creditor cannot substitute themselves for that person.

Cass. com., 15 February 2023, LawLex202300002544JBJ.

Company Law (en cours)

170. Appeals against individual decisions of the AMF

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170. Appeals against individual decisions of the AMF

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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