The legal principle that no one can be tried or punished twice for the same acts, known as "ne bis in idem", is a fundamental guarantee in our legal system. It protects individuals from being punished twice for the same behaviour. However, its application in the financial markets, particularly in the face of the sanctioning powers of the Autorité des Marchés Financiers (AMF), has undergone a complex evolution with many twists and turns. Understanding this dynamic is essential for anyone faced with an investigation or prosecution, whether administrative or criminal. Our firm has observed that this often subtle interplay can have a decisive impact on the course of proceedings and the defence strategy to be adopted. For an overview of the AMF's powers, our comprehensive guide to the AMF's sanctioning powers provides valuable clarification. Discover our full reference guide to the Autorité des Marchés Financiers for an in-depth analysis of its global role.
The ne bis in idem principle: definition and issues
The principle of "non bis in idem" (literally "not twice for the same thing") is a cornerstone of modern criminal law. It means that a person cannot be prosecuted, tried or punished a second time for the same acts by an authority with the same repressive nature. Its origins are deeply rooted in international texts, in particular Article 4 of Protocol No. 7 to the European Convention on Human Rights (ECHR), which states that "No one shall be liable to be tried or punished again in criminal proceedings by the courts of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State".
The importance of this principle is clear: it aims to protect citizens against arbitrariness and to guarantee legal certainty. By limiting the State's ability to prosecute an individual indefinitely for the same behaviour, it establishes a form of post-judgment social peace. It is imperative that this protection, traditionally associated with criminal law, be extended to administrative sanctions, where these are of a 'criminal' nature within the meaning of European case law. This extension has become a major concern in areas where strong administrative regulations coexist with criminal incrimination, as is the case in the financial markets with the AMF.
Combining criminal and administrative penalties AMF: a turbulent development
The relationship between criminal sanctions imposed by the courts and administrative sanctions imposed by the Autorité des Marchés Financiers (AMF) has long been a point of friction in French law. Historically, doctrine and case law have taken divergent approaches to the possibility of combining these two types of sanction for identical acts.
Long-debated compatibility
For many years, French case law, particularly that of the Constitutional Council in its 1989 decision, allowed criminal and administrative penalties to be combined in stock market matters. The main argument was based on the distinct nature of the penalties: some were administrative in nature, handed down by a regulatory authority such as the AMF, while others were criminal in nature, decided by the courts. In theory, this distinction made it possible to circumvent the ne bis in idem principle. The AMF, as an administrative authority, was considered to be pursuing the objective of regulating markets and protecting savings, while the criminal courts were concerned with punishing offences and protecting public order. However, the need to respect the principle of proportionality of penalties was already emphasised: the total amount of penalties should not exceed the highest penalty incurred. To understand the nature of these penalties, see our article on the distinction and scope of AMF administrative and disciplinary sanctions provides further details.
Despite this national position, academic critics argued that many administrative sanctions, because of their severity and punitive purpose, were similar to criminal sanctions and should therefore be subject to the same guarantees, including the "non bis in idem" principle. These criticisms were based in particular on the interpretation of "criminal matters" by the European Court of Human Rights.
The influence of ECHR case law (Grande Stevens)
The "Grande Stevens and Others v Italy" judgment handed down by the European Court of Human Rights (ECHR) on 4 March 2014 marked a major turning point. In this decision, the Court reiterated its broad interpretation of "criminal matters" and clearly stated that administrative sanctions, by their nature and severity, could be regarded as criminal sanctions within the meaning of the Convention. The effect of this judgment was to call into question the validity of France's reservation to Protocol No. 7 of the ECHR, which limited the application of the ne bis in idem principle to national criminal proceedings.
The "Grande Stevens" decision therefore had a major impact on French law. It led to the AMF's administrative sanctions being treated in the same way as criminal sanctions for the purposes of applying the "ne bis in idem" principle, thereby prohibiting multiple prosecutions and sanctions for the same acts. This case law has forced the French legislature and authorities to carry out an in-depth review of the organisation of market abuse proceedings in order to comply with the requirements of the ECHR.
The end of cumulative penalties: intervention by the Constitutional Council and the legislature
Faced with the demands of the European Court of Human Rights, France's system of dual penalties for market abuse had become untenable. It was the Constitutional Council that made this breakthrough, closely followed by the legislator, who had to adapt the legal framework.
The prosecution referral mechanism
The decisions of the Constitutional Council (in particular those of 2015, following the Questions Prioritaires de Constitutionalité, QPC) have enshrined the prohibition on the accumulation of criminal and administrative penalties for the same acts and in respect of the same person. This new situation was enshrined in the Act of 21 June 2016 reforming the repression of market abuse (resulting from the Sapin 2 Act, supplemented by the PACTE Act). The text introduced a precise referral mechanism to avoid double prosecution.
In practical terms, neither the AMF nor the public prosecutor can now initiate proceedings (notification of complaints for the AMF, or initiation of criminal proceedings for the public prosecutor) for the same facts and against the same person without first informing the other authority. This information exchange mechanism enables the coordinating authorities to choose the most appropriate course of action, either administrative or criminal, to deal with the matter. It thus ensures that the person implicated is not exposed to double punishment for the same behaviour, reinforcing the principle of legal certainty.
This rule now has a direct impact on the conduct of sanction proceedings before the AMF. full deciphering of the key stages in the sanction procedure.
Practical consequences of the ban on multiple jobholding
The prohibition on cumulative penalties has direct and significant implications for the individuals and companies being prosecuted. It also simplifies the defence strategy, by avoiding the complexity of having to defend oneself simultaneously before two different authorities (AMF and criminal court) for the same facts. From now on, the competent authorities (AMF or Public Prosecutor's Office) will decide on the course of action to be taken at an earlier stage, giving defendants greater predictability.
On the other hand, this development reinforces the need for prosecuting authorities to accurately assess the nature of the offences and their seriousness in order to determine the most appropriate course of action. This decision will depend in particular on the nature of the social interests to be protected (public financial order or market integrity) and the seriousness of the offence. For those affected, it has become essential to understand the implications of this choice for the remedies available. For a more in-depth look at these issues, see our article on procedures for appealing against AMF sanctions offers a complete overview.
The special case of obstructing AMF investigations and inspections
The offence of hindering or obstructing AMF investigations and inspections has also been at the heart of debates on the application of the ne bis in idem principle. Historically, it was possible to prosecute a person for obstruction (Article L. 642-2 of the Monetary and Financial Code) while imposing an administrative sanction for the same offence (Article L. 621-15 of the same code).
However, a decision by the Conseil constitutionnel on 28 January 2022 (QPC no. 2021-965) put an end to this situation. The Conseil ruled that the provisions of Article L. 621-15, II, f) of the Monetary and Financial Code, which imposed administrative penalties for refusal to provide information or access to documents during an AMF investigation, were contrary to the Constitution. The reason for this is clear: these provisions punished the same offences, described in the same way, with penalties of the same nature and to protect the same social interests as the criminal offence of obstruction. As a result, cumulative prosecution for obstruction, whether criminal or administrative, is now prohibited. This decision significantly strengthens the "ne bis in idem" guarantee for persons subject to AMF investigations and oversight, by avoiding a double penalty for the same obstruction.
Implications for financial market professionals: defending against double repression
Financial market professionals operate in a particularly regulated legal environment. Developments in the ne bis in idem principle and its application to AMF sanctions are of vital importance to them. The slightest error in navigating this complex framework can have devastating consequences, ranging from heavy financial penalties to professional bans, not to mention the impact on reputation.
It is essential for professionals facing criminal charges to understand that the period of coexisting prosecutions is over. From now on, the AMF and the public prosecutor's office must coordinate their actions to avoid double jeopardy. This implies a rigorous upstream assessment phase by the authorities, but also, for the respondent, the need for a clear and unified defence strategy. It is no longer just a question of contesting the facts or the legal classification, but also of ensuring that the procedures comply with the principle of "ne bis in idem" in its new sense. Any procedural irregularity, any failure to comply with the rules governing the referral of prosecutions, can constitute a major defence argument.
Defending against double jeopardy, even if it is now prohibited, remains an exercise that requires an in-depth analysis of the facts, the applicable law and a detailed understanding of the coordination mechanisms between the various authorities. It is therefore more important than ever to have solid legal support from the earliest stages of an investigation or indictment, including expertise in securities and legal guarantees for maximum protection.
The expertise of a competent lawyer: navigating the ne bis in idem principle
The growing complexity of financial regulation and the constant evolution of case law make the involvement of a competent lawyer essential for any individual or legal entity likely to be faced with AMF sanctions. The "ne bis in idem" principle, with its nuances and exceptions, requires in-depth knowledge of financial criminal law and market law.
Our firm, which has a practice dedicated to banking and finance law, assists its clients at every stage of the proceedings. This includes analysing the risks of being implicated, defining the best defence strategy for dealing with the authorities, verifying compliance with the "ne bis in idem" principle and, if necessary, providing assistance before the AMF Enforcement Committee or the criminal courts. We ensure that your rights are fully guaranteed and that you are kept abreast of the latest legal developments and case law. A lawyer specialising in banking and financial law is your best asset for defending your interests and navigating this complex environment with peace of mind.
For an in-depth analysis of your situation and tailored advice, contact our team of lawyers.
Sources
- Monetary and Financial Code
- Code of Criminal Procedure
- Commercial code
- European Convention on Human Rights (ECHR) - Protocol No. 7
- Regulation (EU) No 596/2014 on market abuse
- Financial Security Act No. 2003-706 of 1 August 2003
- Banking and Financial Regulation Act 2010-1249 of 22 October 2010
- Law 2016-819 of 21 June 2016 reforming the system for preventing market abuse
- Law 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life (Sapin 2 Law)
- Act no. 2019-486 of 22 May 2019 on the growth and transformation of businesses (PACTE Act)
- Cons. const., 18 March 2015, no. 2014-453/454 QPC, Mr John L. et al.
- Cons. const., 28 Jan. 2022, no. 2021-965 QPC
- ECHR, 4 March 2014, Grande Stevens and others v Italy
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