The Autorité des marchés financiers (AMF) plays a key role in regulating France's financial markets. Its remit encompasses protecting investors' savings, providing transparent information to investors and ensuring the smooth operation of these markets. To achieve these objectives, the AMF has extensive sanctioning powers, enabling it to take action in the event of breaches. Understanding this framework is important for any person or entity operating in this environment. This article provides an overview of the various aspects of the AMF's sanctioning powers, from the types of sanctions it can impose to the procedures it implements, subjects that our firm explores in greater depth in dedicated technical articles. If you have any questions about your situation, please do not hesitate to contact us.
What is the Autorité des marchés financiers (AMF)?
The Autorité des marchés financiers (AMF) is an independent public authority. Created by the Financial Security Act in 2003, it is the result of the merger of several pre-existing bodies such as the Commission des Opérations de Bourse (COB). Its status gives it the autonomy it needs to oversee the stability and integrity of the financial markets, above and beyond individual interests.
The AMF's principal missions are diverse and complementary: first and foremost, to protect the savings invested by individuals and companies. It must also provide investors with reliable and comprehensive information, enabling them to make informed decisions. Finally, it is responsible for ensuring that the financial markets function properly, by monitoring their liquidity, transparency and integrity. European Union law also has a strong influence on the AMF, which must incorporate the objectives of European financial stability and the recommendations of European supervisory authorities into its actions.
Understanding the scope of the AMF's sanctioning powers
The AMF has dual sanctioning powers: it can issue administrative sanctions and disciplinary sanctions. Although these two types of sanction are governed by a single procedure, they pursue different objectives and concern different categories of persons or breaches. Their relationship with criminal proceedings is a matter of particular concern.
For a more detailed analysis of the distinction and scope of these penalties, please see our article dedicated to these issues.
Administrative penalties: purpose, persons and amounts
Administrative penalties, although imposed by an administrative authority, are punitive in nature. Their purpose is to punish violations of general rules, often of public policy. Their scope is very broad, covering market abuse such as insider dealing, market manipulation and the unlawful dissemination of inside information. The AMF can also penalise breaches of obligations to combat money laundering and terrorist financing, or any action that undermines investor protection or the smooth operation of markets.
The personal scope of these sanctions is also extended, since the AMF can target any person, whether professional or not, who has acted on the financial market. This includes auditors, journalists and investors, for example. Penalties are exclusively pecuniary and have significant ceilings, reaching up to one hundred million euros or ten times the profits made, or even 15 % of the sanctioned person's total annual turnover in certain cases. The amount is set according to the seriousness and duration of the breach, the person's involvement, his or her financial situation, and the gains made or losses avoided.
Disciplinary sanctions: scope and objectives
The AMF's disciplinary powers apply mainly to financial market professionals, their employees and agents. The AMF's disciplinary powers apply mainly to financial market professionals, their employees and agents, and are intended to sanction failure to comply with their professional obligations as defined by European regulations, laws and AMF-approved professional rules. The aim is not so much to protect a profession per se, but rather the clients of professionals and the integrity of the market.
Those subject to this power include investment services providers, market undertakings, clearing houses, collective investment management companies and financial investment advisers. Sanctions may be moral (warning, reprimand), professional (temporary or permanent ban on carrying on all or part of the business) or pecuniary. The amount of disciplinary fines has also been considerably increased, up to €100 million for professionals and €15 million for employees or agents.
The AMF sanction procedure: a rigorous process
The AMF's sanction proceedings are governed by strict principles designed to ensure respect for the rights of the defence and the requirements of a fair trial, inspired in particular by the European Convention on Human Rights. The separation between the AMF Board (the regulatory and prosecuting body) and the Enforcement Committee (the adjudicating body) is a cornerstone of the system.
To find out more about the different phases of this process, see our detailed article on the AMF sanction procedure.
From investigation to notification of grievances
The process begins with an investigation or monitoring phase, initiated by the AMF Secretary General, to gather information on facts that may constitute misconduct. This phase is conducted by authorised investigators, who have restricted powers of investigation. At the end of the investigation, a report is submitted to the AMF Board.
After examining the report, the Board may decide to initiate sanction proceedings. If appropriate, it then notifies the parties concerned of the grievances. This notification is a key stage, as it formalises the criticisms made and paves the way for the adversarial phase. It must be precise and respect the presumption of innocence. The Board may also propose an administrative settlement, a form of transaction that enables the procedure to be brought to a close with a negotiated and approved agreement.
The Enforcement Committee: impartiality and decision making
Once the objections have been notified, the case is referred to the Enforcement Committee, which is independent of the Board. The Chairman of the Enforcement Committee appoints a rapporteur to investigate the case impartially, both for and against the accused. The rapporteur may conduct additional investigations and hear the parties.
Hearings before the Enforcement Committee are open to the public, with some exceptions to protect business secrets or public order. The parties, including the respondent and its counsel, are heard and may present their defence. A representative of the Board may also submit observations. The Commission then deliberates, without the presence of the rapporteur, and gives its reasoned decision. The decision is then notified to the parties and may be made public by the AMF, with the costs borne by the persons sanctioned.
Appeals against AMF decisions
Sanction decisions handed down by the AMF may be appealed. The choice of court (Paris Court of Appeal or Conseil d'État) depends on whether the person sanctioned is a professional or a non-professional. These appeals are of full jurisdiction, which means that the judge may not only review the legality of the decision, but also amend, reduce or annul it. To understand in detail judicial review and available avenues of appeal Our dedicated article gives you all the details you need to know about these decisions.
The problem of cumulative penalties: towards harmonisation
Historically, French law allowed administrative and criminal penalties to be imposed concurrently for the same offence, a position that has been widely criticised, particularly in the light of the principle of subsidiarity. non bis in idem of the European Convention on Human Rights. The case law of the European Court of Human Rights, which equates serious administrative sanctions with criminal sanctions, has forced France to review its position.
Recent developments in legislation and case law, notably the 2016 Act and decisions by the French Constitutional Council, have put an end to this dual prosecution for market abuse. A referral mechanism is now in place, enabling the AMF Board and the public prosecutor to coordinate their actions to avoid double prosecution for the same acts. For an in-depth understanding of these changes, we recommend that you consult our analysis of the ne bis in idem principle.
Why work with a lawyer who specialises in banking and finance law?
Navigating the maze of AMF procedures and understanding the extent of its sanctioning powers is a significant challenge. Whether you are an individual facing an investigation, or a company director wishing to prevent the risk of misconduct, legal expertise is essential. Our expert lawyers in banking and finance law can advise and defend you at every stage: from assisting you during AMF investigations to preparing your written submissions, representing you before the Enforcement Committee and lodging the necessary appeals. Their in-depth knowledge of financial law and AMF practices will provide you with the best possible defence strategy.
For an in-depth analysis of your situation and advice tailored to your specific needs, do not hesitate to contact our team of lawyers, in particular for exploring securities and guarantees.
Frequently asked questions
What is the AMF's main role?
The AMF's main mission is to protect invested capital, inform investors and ensure the smooth operation of financial markets, thereby contributing to their integrity and transparency.
What types of sanctions can the AMF impose?
The AMF can impose administrative sanctions for breaches of general market rules (market abuse, etc.) and disciplinary sanctions for breaches of professional obligations by market participants.
Is the AMF sanction procedure public?
Yes, hearings before the AMF Enforcement Committee are in principle open to the public, although the chairman may decide to hold the hearing in camera, in whole or in part, for reasons of business secrecy, public order or national security.
Can the AMF and the criminal justice system penalise you twice for the same offence?
Following recent changes in the law, the "ne bis in idem" principle now applies, prohibiting the combination of criminal and administrative proceedings for the same market abuse offences. Coordination mechanisms have been put in place between the AMF and the public prosecutor's office.
What is the limitation period for AMF sanctions?
The limitation period is six years from the day on which the breach was committed. If the breach is hidden or concealed, the period runs from the time it is discovered, but may not exceed twelve years.
Is it possible to challenge an AMF sanction decision?
Yes, AMF sanction decisions may be appealed to the Paris Court of Appeal for non-professionals, or to the Conseil d'État for professionals, within two months of notification.
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