Disciplinary Sanctions
LexInter | August 27, 2003 | 0 Comments

Disciplinary Sanctions

Disciplinary sanctions


“Art. L. 341-17. – Any breach of the laws, regulations and professional obligations applicable to banking or financial canvassing committed by the persons mentioned in 1 ° and 3 ° of Article L. 341-3 and Article L. 341-4 is penalized in the conditions provided for, depending on their nature or activities, in Articles L. 613-21, L. 621-15 and L. 621-17 of this code and in Article L. 310-18 of the Insurance Code. “

II. – 1. Chapter IV of Title IV of Book III of the Monetary and Financial Code becomes Chapter II and its Articles L. 344-1 to L. 344-3 become Articles L. 342-1 to L. 342-3.

2. In all legislative and regulatory provisions, references to Articles L. 344-1 to L. 344-3 of the same code are replaced by references to Articles L. 342-1 to L. 342-3 of this code.

III. – Article 8 of Law No. 72-6 of January 3, 1972 relating to financial canvassing and investment and insurance transactions is repealed.

Article 51


Article L. 214-12 of the Monetary and Financial Code reads as follows:

“Art. L. 214-12. – The Autorité des marchés financiers defines the conditions under which undertakings for collective investment in transferable securities must inform their subscribers and may be the subject of advertising, in particular audiovisual, or canvassing. “

Article 52


The first paragraph of Article L. 214-55 of the Monetary and Financial Code is supplemented by a sentence worded as follows:

“The articles of association of the civil society may provide that the liability of each partner is limited to the amount of his share in the capital. of the society. “

Article 53


I. – The monetary and financial code is thus amended:

1 ° Sections 1 to 3 of chapter III of title V of book III are replaced by a section 1 as follows:


“Section 1

“Canvassing in banking or financial matters


“Art. L. 353-1. – Is punished by six months’ imprisonment and a fine of EUR 7,500:

“1 ° The fact, for any person, of engaging in the banking or financial canvassing activity defined in article L. 341-1 without having obtained a prospecting card in the event of activity carried out under the conditions of Article L. 341-8;

“2 ° The fact, for any person engaged in the banking or financial canvassing activity defined in article L. 341-1, of not communicating to the person contacted the information and documents mentioned in article L. 341-12 and in the penultimate paragraph of article L. 341-6;

“3 ° The fact, for any person engaged in the banking or financial canvassing activity defined in article L. 341-1, of not complying with the rules relating to the signing of the contract provided for in article L. 341-14;

“4 ° The fact, for any person engaged in the banking or financial canvassing activity defined in article L. 341-1, of not allowing the person contacted to benefit from the withdrawal period mentioned in article L. 341-16 subject to the exemptions provided for in this article;

“5 ° The fact, for any person engaged in the banking or financial canvassing activity defined in the second paragraph of Article L. 341-1, of receiving orders or funds from people canvassed for the provision of reception-transmission and execution of orders on behalf of third parties mentioned in article L. 321-1, or financial instruments mentioned in article L. 221-1, before the expiry of the forty – eight hours mentioned in IV of article L. 341-16.

“Art. L. 353-2. – Is punished by the penalties provided for in article 313-1 of the penal code:

“1 ° The fact, for any person, of resorting to the activity of banking or financial canvassing defined in article L. 341-1 without completing the conditions provided for in Articles L. 341-3 and L. 341-4;

“2 ° The fact, for any person engaged in the banking or financial canvassing activity defined in article L. 341-1, of offering prohibited canvassing products mentioned in article L. 341-10;

“3 ° The fact, for any person, of carrying out or attempting to carry out a banking or financial canvassing activity in violation of the prohibition provided for in article L. 341-9;

“4 ° The fact, for any person engaged in the banking or financial canvassing activity, of offering to canvassed persons products, financial instruments and services other than those for which he has received express instructions from the person or persons to the account of which it is acting;

“5 ° The fact, for any person engaged in the banking or financial canvassing activity, of receiving from people canvassed cash, commercial paper, securities or checks to bearer or in his name or all will pay by another way.

“Art. L. 353-3. – Individuals guilty of one of the offenses mentioned in Articles L. 353-1 and L. 353-2 also incur the following additional penalties:

“1 ° The prohibition of civic, civil and family rights, according to the terms and conditions provided for by article 131-26 of the penal code;

“2 ° The prohibition, in accordance with the terms provided for in article 131-27 of the penal code, to exercise a public function or to exercise a professional or social activity in the exercise or on the occasion of which the offense has been committed, for a period of five years at most;

“3 ° The display or dissemination of the pronounced decision, under the conditions provided for by article 131-35 of the penal code.

“Art. L. 353-4. – Legal persons can be declared criminally responsible, under the conditions provided for by article 121-2 of the penal code, for the offenses defined in articles L. 353-1 and L. 353-2.

“The penalties incurred by legal persons are:

“ 1 ° The fine, in accordance with the terms provided for by article 131-38 of the penal code;

“2 ° The penalties mentioned in article 131-39 of the same code.

“The prohibition mentioned in 2 ° of this same article relates to the activity in the exercise of which or on the occasion of the exercise of which the offense was committed.

“Art. L. 353-5. – The agents mentioned in article L. 450-1 of the commercial code are qualified to carry out the research and the observation of the infringements provided for in articles L. 353-1 and L. 353-2 of this code under the conditions set by Articles L. 450-2 to L. 450-4, L. 450-7 and L. 450-8 of the Commercial Code. “;

2 ° Section 4 of the same chapter becomes section 2 and article L. 353-7 becomes article L. 353-6.

II. – In all legislative and regulatory provisions, references to Article L. 353-7 of the Monetary and Financial Code are replaced by references to Article L. 353-6 of this code.

Article 54

I. – The Monetary and Financial Code is amended as follows:

1 ° Article L. 519-5 is worded as follows:

“Art. L. 519-5. – When intermediaries in banking transactions engage in canvassing activity within the meaning of Article L. 341-1, they are subject to the provisions of Articles L. 341-4 to L. 341-17 and L. 353- 1 to L. 353-5. “;

2 ° The g of 2 ° of Article L. 531-2 reads as follows:

“g) Persons whose activity is governed by Chapter I of Title IV of Book III on condition that they are authorized, in accordance with Article L. 341-4, by persons authorized to provide the same investment services; “

3 ° Article L. 550-1 is completed by the following paragraph:

“The persons mentioned in this article are subject to the provisions of articles L. 341-1 to L. 341-17 and L. 353-1 to L. 353-5 when they act by canvassing. “

II. – Article L. 322-2-2 of the Insurance Code reads as follows:

“Art. L. 322-2-2. – Transactions other than those mentioned in Articles L. 310-1 and L. 310-1-1 of this code and in Article L. 341-1 of the Monetary and Financial Code cannot be carried out by the companies mentioned in Articles L. 310-1 and L. 310-1-1 of this code only if they remain of limited importance in relation to all of the company’s activities. A decree in Council of State fixes the modalities of application of this article. “

Article 55

A Chapter I worded as follows is inserted in Title IV of Book V of the Monetary and Financial Code:


“Chapter I
 

“Financial investment advisers


“Art. L. 541-1. – I. – Financial investment advisers are persons exercising, as a usual profession, an advisory activity relating to:

“1 ° Carrying out transactions on the financial instruments defined in article L. 211-1;

“2 ° Carrying out banking transactions or related transactions defined in Articles L. 311-1 and L. 311-2;

“3 ° The provision of investment services or related services defined in Articles L. 321-1 and L. 321-2;

“4 ° Carrying out transactions involving miscellaneous property defined in article L. 550-1.

“II. – Are not subject to the provisions of this chapter:

“1 ° Credit institutions and organizations mentioned in Article L. 518-1, investment firms and insurance firms;

“2 ° Professionals subject to specific regulations who exercise financial investment advice within the limits of these regulations.

“III. – Financial investment advisers may not as usual and remunerated give legal advice or draft deeds under private signature for others only under the conditions and limits of Articles 54, 55 and 60 of Law No. 71-1130 of December 31 1971 reforming certain judicial and legal professions.

“Art. L. 541-2. – Financial investment advisers who are natural persons, as well as natural persons having the power to manage or administer legal persons authorized as financial investment advisers must meet the age and good repute conditions set by decree, as well as the professional competence conditions set by the general regulations of the Autorité des marchés financiers.

“Art. L. 541-3. – Any financial investment advisor must be able to justify at any time the existence of an insurance contract covering him against the pecuniary consequences of his professional civil liability, in the event of breach of his professional obligations as defined in this chapter.

“The minimum level of guarantees that must be provided by professional liability insurance is set by decree, depending on the legal form in which the consulting activity is carried out and the products and services likely to be advised.

“Art. L. 541-4. – Any financial investment advisor must join an association responsible for collective representation and the defense of the rights and interests of its members. These associations are approved by the Autorité des marchés financiers in consideration, in particular, of their representativeness and their ability to fulfill their missions. They must have the Autorité des marchés financiers approve the conditions of competence and the code of conduct to which their members are subject. This code must comply with a minimum of requirements set by the general regulations of the Autorité des marchés financiers, in particular obliging financial investment advisers to:

“1 ° Behave with loyalty and act with fairness in the best interests of their clients;

“2 ° Carry out their activity, within the limits authorized by their statute, with the competence, care and diligence required in the best interests of their clients, in order to offer them a range of services adapted and proportionate to their needs. and their goals;

“3 ° Be provided with the necessary resources and procedures to carry out their activities and implement these resources and procedures with a concern for efficiency;

“4 ° Before giving advice, inquire about the financial situation of their clients, their experience and their investment objectives;

“5 ° Communicate to customers, in an appropriate manner, the legal nature and the extent of any relations maintained with the establishments promoting the products mentioned in 1 ° of Article L. 341-3, the information useful for taking decisions by these clients, as well as those concerning the terms of their remuneration, in particular the pricing of their services.

“Art. L. 541-5. – Any financial investment advisor who wishes to carry out his activities in France must, after verifying that he meets the conditions set out in Articles L. 541-2 to L. 541-4, be registered on a list kept and regularly updated by each professional association mentioned in Article L. 541-4 in accordance with the terms set by decree issued after consultation with the National Commission for Information Technology and Civil Liberties. This list is sent to the Autorité des marchés financiers, in accordance with the terms set out in its general regulations, and from which it is freely available to the public.

“The financial investment advisor is assigned a registration number issued by the professional association with which he is registered. This number must be communicated to any person coming into contact with it and must appear on all documents issued by financial investment advisers.

“Art. L. 541-6. – Any financial investment advisor is prohibited from receiving funds from his clients other than those intended to remunerate his financial investment advisory activity.

“Art. L. 541-7. – I. – No one may directly or indirectly, for his own account or for the account of others, exercise the activity of financial investment advisor if he has been the subject for less than ten years.

“1 ° For crime;

“2 ° To a penalty of at least three months imprisonment without suspension for:

” a) One of the offenses provided for in Title I of Book III of the Penal Code and for the offenses provided for by special laws and punishable by penalties intended for fraud and breach of trust;

“B) Receiving;

“C) Money laundering;

“D) Active or passive corruption, influence peddling, embezzlement and misappropriation of property;

“E) Forgery, falsification of securities or other fiduciary securities issued by the public authority, falsification of the authority’s marks;

“F) Participation in a criminal association;

“(G) Drug trafficking;

“H) Procuring and similar offenses;

“I) One of the offenses provided for in section 3 of chapter V of title II of book II of the penal code;

“J) One of the infringements of the legislation on commercial companies provided for in Title IV of Book II of the Coinmerce Code;

“K) Bankruptcy;

“L) Usurious loan practice;

“M) One of the offenses provided for by the law of May 21, 1836 prohibiting lotteries, by the law of June 15, 1907 regulating gambling in the circles and casinos of seaside, thermal and climatic resorts and by law no. 83-628 of July 12, 1983 relating to games of chance;

“(N) Breach of the laws and regulations of financial relations with foreign countries;

“O) Tax fraud;

“P) One of the offenses provided for in Articles L. 163-2 to L. 163-8, L. 163-11 and L. 163-12 of this code;

“Q) One of the offenses provided for in Articles L. 122-8 to L. 122-10 and L. 213-1 to L. 213-5 of the Consumer Code;

“R) One of the offenses provided for in Articles L. 465-1 and L. 465-2 of this Code;

“S) One of the offenses provided for in section 2 of chapter I of title III of book II, section 1 of chapter III of title V of book III, chapters I to IV of title VI of book IV and title VII of book V of this code;

“3 ° To the dismissal of the functions of public or ministerial officer.

“II. – The incapacity provided for in I applies to any person in respect of whom a definitive measure of personal bankruptcy or another definitive prohibition measure provided for in Articles L. 625-1 to L. 625-7 has been pronounced. and L. 625-9 to L. 625-10 of the commercial code or, in the previous regime, in article 108 of law n ° 67-563 of July 13, 1967 on judicial settlement, liquidation of property, personal bankruptcy and bankruptcies, if it has not been rehabilitated.

“III. – People carrying out a financial investment advisory activity who are the subject of one of the convictions provided for in I must cease their activity within a period of one month from the date on which the court decision becomes final .

“IV. – In the event of a conviction pronounced by a foreign court and which has become res judicata for an offense constituting, according to French law, a crime or one of the offenses mentioned in I, the criminal court of the convicted person’s domicile declares, at the request of the public prosecutor, after ascertaining of the regularity and legality of the conviction and the interested party duly called in chamber of the council, that it is necessary to the application of the incapacity envisaged by the I.

“This incapacity also applies to any unrehabilitated person who has been the subject of a personal bankruptcy pronounced by a foreign court when the declaratory judgment has been declared enforceable in France. The request for exequatur may be, for this purpose only, made by the public prosecutor before the tribunal de grande instance of the domicile of the convicted person. “

Article 56

Article L. 621-17 of the Monetary and Financial Code reads as follows:

“Art. L. 621-17. – Any breach by the financial investment advisers defined in Article L. 541-1 of the laws, regulations and professional obligations concerning them is punishable by the sanctions pronounced by the Sanctions Commission in accordance with the procedures provided for in I, a and b of III , IV and V of article L. 621-15.

“The amount of the penalty must be set according to the seriousness of the breaches committed and in relation to the advantages or profits possibly drawn from these breaches. “

Article 57

I. – 1. The title of Chapter III of Title VII of Book V of the Monetary and Financial Code is completed by the words: “and to financial investment advisers”.

2. Before article L. 573-1 of the same code, a division and a title are inserted as follows: “Section 1. – Provisions relating to investment service providers”.

II. – Chapter III of Title VII of Book V of the same code is supplemented by a section 2 worded as follows:


“Section 2

“Provisions relating to

financial investment advisers


“Art. L. 573-9. – Is punished by the penalties provided for in article 313-1 of the penal code:

“1 ° The fact, for any person, of exercising the activity of financial investment advice defined in article L. 541-1 without fulfilling the conditions provided for in Articles L. 541-2 to L. 541-5;

“2 ° The fact, for any person, of exercising or attempting to exercise an activity of financial investment advisor in violation of the prohibition provided for in article L. 541-7;

“3 ° The fact, for any person engaged in the activity of financial investment advice, of receiving funds from his clients in violation of the prohibition provided for in article L. 541-6.

“Art. L. 573-10. – Individuals guilty of one of the offenses mentioned in article L. 573-9 also incur the following additional penalties:

“1 ° The prohibition of civic, civil and family rights, in accordance with the procedures provided for by the article 131-26 of the penal code;

“2 ° The prohibition, in accordance with the terms provided for in article 131-27 of the same code, to exercise a public function or to exercise a professional or social activity in the exercise or on the occasion of which the offense has been committed, for a period of five years at most;

“3 ° The display or dissemination of the decision pronounced under the conditions provided for by article 131-35 of the same code.

“Art. L. 573-11. – Legal persons can be declared criminally responsible, under the conditions provided for by article 121-2 of the penal code, for the offenses defined in article L. 573-9.

“The penalties incurred by legal persons are:

“ 1 ° The fine, in accordance with the terms provided for by article 131-38 of the penal code;

“2 ° The penalties mentioned in article 131-39 of the same code.

“The prohibition mentioned in 2 ° of this same article relates to the activity in the exercise of which or on the occasion of the exercise of which the offense was committed. “

Leave a Comment

Your email address will not be published.


CAPTCHA Image
Reload Image