Following publication by ESMA of implementing measures for the Market Abuse Regulation in the form of technical standards (AMAFI / 15-51), AMAFI identified a number of questions that were discussed with AMF staff at a meeting organised in December. The aim was to ensure that these issues were taken into account in the discussions currently being held by ESMA.
Meanwhile, the Treasury began an urgent consultation in mid-January on draft legislative amendments to the Monetary and Financial Code. These include changes to protection for whistleblowers, modifications to the Monetary and Financial Code to accommodate the provisions of the Market Abuse regulation, the extended scope of the administrative settlement procedure, a ban on advertising for certain particularly risky products and transposition into French law of various pieces of European financial legislation. In responding, AMAFI raised a number of questions, particularly about provisions for whistleblowers (AMAFI / 16-09).
The consultation also covered the new stance on double jeopardy in terms of criminal and administration penalties for market abuse, which was eagerly awaited following the Constitutional Council’s ruling of March 2015. In the end, after various options were raised during the many discussions on this topic, it was decided neither to assign arbitration to a special commission nor to establish specific legal definitions for what constitutes a breach (subject to administrative penalties) or an offence (subject to criminal penalties). Under the selected approach, the financial public prosecutor and the AMF would work together to decide, based on the evidence, whether to go down the administrative or criminal route. Such cooperation has always been recommended in this area, but in the event of disagreement, the public prosecutor would be responsible for making a final, non-appealable decision. AMAFI pointed out that the image-related issues raised by the swift punishment of market abuse meant that the public prosecutor should take on only cases that can be handled efficiently within timeframes compatible with orderly market operation.
