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Darrois Villey Maillot Brochier wins before the Constitutional Council for the recognition of the non bis in idem principle

The same person may not anymore, for stock market matters – insider offences –, be prosecuted and condemned twice for the same facts by the Autorité des marchés financiers [the French Market Authority] and by the Criminal Judge.  On 18 March 2015, by stating that this system criticized for so many years is contrary to our Constitution, the Constitutional Council rendered a decision in line with the jurisprudence of the European Supreme Courts which already repeatedly condemned this system.

This historic decision should be welcomed, in particular in a country where the efficiency of the judicial system is regularly questioned. The Conseil Constitutionnel [the French Constitutional Council] members needed a lot of courage for these legal provisions, in force in France for thirty years, is censored. Before being submitted to the Conseil Constitutionnel [the French Constitutional Council], the priority preliminary ruling on constitutionality behind this change has thus, passed successfully through the filters of the Tribunal Correctionnel [the French Criminal Court] and the Cour de Cassation [the French Court of Cassation], which had always approved the system of cumulation for stock market matters.

This decision has immediate effects on persons who have been sentenced by an AMF or a Criminal Judge’s final judgement. From now on, the same person can no longer be prosecuted a second time for the same facts.

The Conseil Constitutionnel considered that a period expiring on September 1st, 2016 is necessary for the legislator to amend this device: the date by which the law establishing the breach and insider trading will be permanently repealed. It is therefore, the role of the legislator to reform, during this period, the punishment of offenses and market abuse so that the same facts can only be one prosecution, either before AMF or before the Criminal Court.

He may set up, for instance, a joint board comprising both AMF and Public Prosecutions members, who would choose between the criminal and administrative proceedings. This committee should be able to assess the feasibility of the transaction.

It will be necessary to determine whether this decision should be taken at the end or at the opening of the investigation and also specify who will be assigned to it.

If the criminal route is chosen, it will have to consider the role of the French Market Authority before the criminal judge; should it be a prosecution authority together with the prosecutors, with the power to require a financial penalty, or should it be only allowed to submit comments?

There are so many matters that the legislator will have to determine in the following months.

In the meantime, the defenders of the fundamental rights and freedoms can only rejoice at the decision rendered by the Conseil Constitutionnel [the French Constitutional Council], which repositions France in its ability to ensure the rights of the defense, and more generally the human rights.