DIDIER v. FRANCE
Inadmissible
The applicant, Jean-Louis Didier, is a French national who was born in 1962 and lives in Neuilly-sur-Seine. He was represented before the Court by Mr C. Bremond, of the Paris Bar. The applicant is head of the arbitrage department of Dynabourse SA, a company, and is in charge of the transactions carried out by Dynabourse Arbitrage, a commercial partnership in which Dynabourse SA has a stake of more than 77%. In the light of a report drawn up by its inspectors following an inquiry, the Stock Exchange Regulatory Authority (Commission des opérations de bourse) applied to the Financial Markets Board (Conseil des marchés financiers – “the FMB”) to have disciplinary proceedings instituted against the applicant. On 1 July 1998 the chairman of the FMB notified the applicant of the complaints against him. On 27 January 1999 the Financial Markets Board, exercising its disciplinary powers, decided to suspend the applicant’s trading licence for six months and fined him 5,000,000 French francs. On 30 April 1999 the applicant brought an action in the Conseil d’Etat, seeking to have the decision in issue quashed and its execution stayed. On 3 December 1999 the Conseil d’Etat dismissed the applicant’s action. It held, in particular, that when dealing with a case concerning acts for which disciplinary penalties could be imposed, “the Financial Markets Board must be regarded as determining criminal charges within the meaning of the aforementioned provisions of the ... Convention for the Protection of Human Rights and Fundamental Freedoms”. The Conseil d’Etat further held: “Seeing that an action may be brought in the Conseil d’Etat in respect of a decision by the Financial Markets Board, the fact that proceedings before the Board might not satisfy the requirements of Article 6 § 1 in every respect cannot be taken to constitute an infringement of the right to a fair hearing in all such cases. However, even though the Financial Markets Board, when exercising its disciplinary powers, is not a court under domestic law, the ground of appeal to the effect that the manner in which it dealt with the case contravened the principle of impartiality set forth in the aforementioned Article 6 § 1 may, having regard to its nature, membership and functions, be validly relied on in support of an action in the Conseil d’Etat in respect of a decision by the Board. ... the rapporteur, who does not initiate the referral process, plays no part in the formulation of complaints. He does not have the power to discontinue proceedings or, conversely, to broaden the scope of a case. The investigative powers he enjoys in assessing the validity of the complaints and of the observations of the person against whom proceedings have been brought do not authorise him to make searches or seizures or to take any other coercive measures during the investigation. In the present case ... it has not been established, or even alleged, that in performing his duties the rapporteur exceeded the powers which were conferred on him by the provisions cited above and which are no different from those available to the Financial Markets Board’s disciplinary panel itself. Consequently, his participation in the deliberations and vote that resulted in the imposition of a penalty on Mr Didier did not give rise to any breach of the principle of impartiality as set forth in Article 6 § 1 of the ... Convention for the Protection of Human Rights and Fundamental Freedoms.” The relevant provisions of Decree no. 96-872 of 3 October 1996 on the disciplinary panels of the Financial Markets Board are worded as follows: ... “The decision shall be served on the person concerned and on the Government Commissioner by means of a registered letter with recorded delivery. The Board shall, where appropriate, notify its decision to the referring entity. Persons on whom penalties are imposed and the Minister for Economic Affairs and Finance shall have two months to bring an action in the Conseil d’Etat; in the Minister’s case, that time shall start to run from the date on which the decision is served on the Government Commissioner. ...” ...