European Court of Human Rights and Administrative/Antitrust Proceedings

The European Court of Human Rights has handed down a significant judgment finding that France is in breach of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights because of the manner in which the French Banking Commission investigated and punished infringements of French banking law.

The Court held in its judgment of June 11th 2009 in Dubus S.A. v. France (available in French only) that France breached Article 6 § 1 on account of the lack of independence and impartiality of the disciplinary proceedings brought by the French Banking Commission against the applicant, Dubus S.A., a French investment corporation.

A press release in English is available here.

The Court of Human Rights found that there was no clear distinction between the functions of prosecution, investigation and adjudication in the exercise of the judicial power vested in the French Banking Commission. While the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality, this was subject to their being no "prejudgment” on the part of the Banking Commission. The Court stated that there was a need for strict controls, to avoid giving the impression that guilt had been established from the very start of the disciplinary proceedings.

The Court of Human Rights also found that Dubus could reasonably believe that it was prosecuted and tried by the same people, and consequently could entertain doubts about the impartiality of the decision of the Banking Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and imposed the penalty.

Interestingly, the Court of Human Rights also held, en passant, that the penalties in the form of fines were penal in character given the high amounts that could, potentially, be imposed.

Why is this significant ?

Because the procedure used by the European Commission in antitrust cases is rather similar (but not identical) to the one applied by the French Banking Commission.

Also, similar arguments are pending before the Court of First Instance in Case T-56/09 Saint Gobain Glass France and Others v. Commission.

Comments

[nestor]

This is a total BS, although - without having read the decision - I know it had some basis in (French-originated) ECHR case law. All executive, administrative authorities work the same way all over the world: they review some action and then they issue (or not) a fine. I.e. the investigative and judiciary functions are combined so to speak -- however this is only an optical illusion, as these procedures are always subject to judicial reviews (often two more or even three instances which might even change the decision of the adminsitrative authority not just cassate it). The antitrust review adds a twist (maybe the French banking process as well) i.e. that the authority gives the opportunity for the investigated parties to formally present their case as well. But the investigative, executive authority could always do without this part, it is merely generous. To say that an administrative fine is against due process (when it is in fact subject to comprehensive juducial review) just because the investigation and the issue of fines were done by the same body is ridiculous and shows a very French legal thinking. I have serious doubts as to how strong this precedent will be re EU law. In addition, the ECJ could have expressed doubts about the Comissions's procedure in this respect if it really felt the need.