Compliance and Regulation Law bilingual Dictionnary


by Marie-Anne Frison-Roche


The art and the power of Law are in the words. This is why we sometimes attach the Law to the Acts of languages.

The notion of "tribunal" is a good example. One can define a tribunal by locating the occurrences of this term in the texts: is thus a "tribunal" the body which is called "tribunal" and is not a "tribunal" that which is not so called . The power of such a literal tautology has long been that of French law. The technical consequence is considerable since the person whom the decision an agency may take may affect is much less protected when the agency is a "tribunal" than when it is not, for example. of an administration, or of a company, or of the family.

Indeed, the person before a court is naturally endowed and in particular with rights of defense and benefits from the adversarial principle. And even before the benefit of these procedural guarantees, the person has the right to have his judge independent and impartial. All of these principles have constitutional value because it is the essential freedoms of individuals that are then at stake.

In the formal and tautological conception, this hardly concerns the law of regulation, since it is rather institutionally built on regulatory authorities which certainly have great cumulative powers but which are administrative authorities and not jurisdictions. This is all the more distant since these administrative authorities take administrative decisions and not civil or criminal judgments. It is therefore outside of them that a criminal law of regulated markets is developing.

But one can handle the art of qualification in a non-formal and non-tautological way. This is what was done by the European Court of Human Rights in the interpretation it gave of Article 6 of the European Convention on Human Rights. Indeed, it provides that "everyone has the right to an impartial tribunal in civil and criminal matters".

According to a teleological reasoning and by being concerned above all with the situation of the person concerned, the ECHR considered that when a person is punished in a significant way for a fault that he has committed, we are in "criminal matters" , as when the decision affects his personal or patrimonial situation, we are in "civil matters", even though national law handles rules, for example formally administrative in an administrative dispute. Even more, by this fact alone, by the effect that it produces on the person and the danger that the prospect of such a decision represents for that, it institutes the organization in "court", and triggers for the benefit of this person all procedural guarantees.

National law has only gradually accepted this reasoning which does not respect the division of the legal system into a branch of law and the successive decisions of the courts, the Cour de Cassation, the Conseil d'Etat and the Conseil d'Etat, sanctioned the Regulators. or invalidated the texts organizing their procedures for not having respected the consequences of their nature as a "court in the European sense", in particular not the requirement of objective impartiality, or the consequences of the applicability of the principle Non bis in idem.

Begun in the 1980s, this continuing saga shows the power of words combined with the art of qualification and the force of inertia of an administrative system, both because it is always difficult to change and because a repressive administrative law can claim to be more effective because it gives less weapons to the suspected operative.

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