Professional secrecy cannot be opposed including by the Board of Auditors

Parts obtained by the authority financial markets (MFA) in its investigations could be made available to savers and investors to carry out a trial in repair It is suggested by the AMF in a report of January 25, 2011. The objective is to deal with the difficulties of evidence in such proceedings. The demonstration of causation with the damage and the fault would be, under the terms of the MFA, "difficult in stock and financial matters to the extent where she must rely on elements often out of reach of victims". Hence the idea of providing complainants a weapon absolute at the service of their repair actions.

It should be noted that, for the purposes of the investigation, the AMF may be authorized by the judge of freedoms and detention to seizures of documents through home visits. Professional secrecy cannot be opposed, including by the Board of Auditors. This type of quasi-judicial adjudicative powers to sanction breaches of the integrity of financial markets was conferred upon the independent administrative authorities by the European market abuse directive to meet the requirements of fairness and transparency of financial markets, which are imperatives of economic public order.

Parts contained in the records of the MFA would certainly facilitate the demonstration of the fault of an issuer of financial instruments or a provider of investment services by a complainant is considering victim of their actions. For this purpose, the AMF intends to infiltrate a fault of our system: is not a court but with what criminal justice can be obtained following a preliminary inquiry where a statement, nothing would preclude, a priori, to give to the civil judge access to these folders.

This proposal should be denied with firmness, not because it presents a danger to the issuers and providers of investment services, objects of investigation of the MFA, but because the fact of providing an independent administrative authority of its duty of professional secrecy is a democratic danger.

The Act provides that it cannot be deviated from the professional secrecy to which AMF agents are subject only to the Prosecutor of the Republic. In practice, the record of the MFA is always paid to the criminal prosecution procedure involving an abuse of market. The civil parties to the criminal trial can therefore be aware of completeness of the documents seized by the AMF.

Only a criminal conviction allows, our balanced judiciary, the prosecution of a civil action based on evidence obtained through coercion an investigation. To allow the AMF to pay legal debate of nature purely civil, exclusive of any criminal fault of obtained parts in its investigations, regardless of the precautions which could be taken, be paradoxical to exceptional powers available to this institution in its mission to police financial markets.

The requirement of compensation for damages resulting from breaches of the regulation of financial markets non-qualifiable criminally cannot, in any way, justify the lifting of professional secrecy of the MFA, which is a constitutional and European requirement. The exhibits in the record of proceedings before the AMF cannot therefore be made available to any party to a civil trial to feed his argument.