Aug. 6, 2014


The "Conseil d'Etat" (French Council of State) transmits July 23, 2014 a "Question prioritaire de constitutionnalité - QPC" on any non-compliance with the Constitution of concurrent sanctions under the Non bis in idem principle, about the French Court of budgetary and financial discipline

by Marie-Anne Frison-Roche

In its judgment of 23 July 2014, MM. B., A. et C., the Conseil d'Etat (French Council of State) shall transmit a  Question prioritaire de constitutionnalité - QPC (Priority Question of Constitutionality) to the Conseil constitutionnel  (French Constitutional Council) about the compliance of the procedural organization of the Cour de discipline budgétaire et financière - CDBF (French Court of fiscal and financial discipline) in terms of constitutional principle impartiality.

Indeed, the jurisprudence of the Constitutional Council has incorporated in the constitutional corpus the principle of impartiality, objectively designed   as judicial jurisprudence and the jurisprudence of the European Court of Human Rights have done and have imposed the organs exercising power sanction must give to see their impartiality (definition of the "objective impartiality") to third parties who must have confidence in this body which has power to impose sanctions.

Read the judgment and its presentation


Italy had been condemned by the European Court of Human Rights, by the judgment Steven Grande c. Italy ruled on March 4, 2014, for having disregarded the rule Non bis in idem in the organization of financial repression.

For now, France has not changed, then it should be forced to choose between criminal law enforcement and administrative repression throughout the banking and financial regulation, it shall be a major policy choice, even more a revolution. It seems that for now, the French government does not move.

So far in the internal order, the Cour de cassation  (French Court of Cassation), to which nevertheless demands in order to ask a QPC were transmitted during a case about the Non bis in idem rule, hadn't considered useful to transmit to the Constitutional Council.

But after the conviction of Italy by the judgment of 4 March 2014, the French legal system, similar to that of Italy, could only move. Since it doesn't change by the Government, it may be going to change by the judges.

The Council of State will then send the question to the Constitutionnal Council.

And if the Constitutional Council considers that there is violation of the constitutional rule of impartiality, o double jeopardy for the Cour de discipline budgétaire et financière - CDBF, then it will be worth without all overlapping penalties, administrative and criminal, which is a considerable challenge.

And ask the big question: in terms of efficiency, which should be saved?

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