Punish deter prevent alert repair regulate

The case of the steel cartel has created a controversy on the proportionality of the penalty imposed by the competition authority. The Court of appeal of Paris, on January 19, reduced the sentences by this independent administrative authority. This decision led to wonder about the role of the fine in economic regulation.

In the creation of the independent authorities specialized in economic regulation, the need to provide them with a power of sanction is naturally imposed. Parliament is being focused on the effectiveness of their missions, the sanction has emerged as a means of action, if not essential. But the question of the nature of the role of the penalty imposed by the regulatory authorities has been avoided. However, more likely than in other areas, for Suppression of economic behaviour, such a debate is essential.

Under the terms of a decision of 17 January 1989, the Constitutional Council has also admitted that an administrative authority has a "power of sanction in the limit necessary for the fulfilment of its mission" only to the extent that it is framed by "guaranteed measures to safeguard constitutional rights and freedoms".

The objectives of the punishment

The jurisprudence came then remind the administrative authorities that their power of sanction remained boxed by the fundamental rules of fair trial. The Court of appeal of Paris, which examines the appeal against the sanctions imposed by the authorities of market for more than twenty years, and several times annulled decisions on the ground of failure to comply with fundamental guarantees. In this field, the administrative authorities had therefore evolve. The procedure is is then inexorably "juridictionnalisée."

Concerning more specifically the nature of the sanction, the debate is now posed. As noted by the Court of justice of the European Union in a decision of the December 23, 2009 on the definition of operation of insider, the sanction to be applied by the administrative authority must be both proportionate and deterrent sanctions. The synthesis of these two contradictory goals but is not self-evident.

The complexity of the definition of the proportionate sanction lies in the fact that the sanction may tend to various objectives that are not necessarily compatible.

Punish, deter, prevent, alert, repair, regulate... as many objectives that could enter the grid of appreciation of the sanction. But still should be that the hierarchy of these objectives had been fixed. However the subject does not consensus, without having been sufficiently debated.

When it comes to sanction companies, the reference to turnover or market capitalization leads to fines which amount can appear more obviously extravagant as reasonable and therefore proportionate.

The very idea that exemplary punishment can be a tool of economic regulation creates mistrust. Is it compatible with the requirement of article 8 of the Declaration of the rights of man and the citizen of 26 August 1789, which allows only the sentences "strictly and obviously necessary"

Good justice should not be given for the example. It is one of the pillars of a fair trial than to try for facts, taking into account the individual situation and the context. Calculate the amount of a sanction with aim to deter any other operator to transgress the rule quickly leads to clash with the principle of proportionality, fundamental value of justice. It is one of the contributions of the judgment of the Court of appeal of Paris on January 19, 2010: it recalls the jurisprudence of the Constitutional Council that "the individualization is a requirement of the most sacred principles of repressive law." The competition authority "must therefore make a special motivation on this point care and temper the words so that the basis for evaluation of sanctions appear exclusively negative or stereotypical".

To the judges of their decisions, independent administrative authorities now face the consequences of the failure of the political debate which led to their creation and definition of their repressive powers.

The Court of appeal of Paris opens a reflection on the place given to assent to the other means of action of the authorities. Is the penalty a posteriori finally one of the signs of failure of regulation