THE PUNITIVE POWER OF INDEPENDENT ADMINISTRATIVE AUTHORITIES: FOCUS ON FINANCIAL AND TAX VIOLATIONS (A COMPARATIVE STUDY)
1. Introduction. – 2. The Emergence of Independent Administrative Authorities in France. – 3. The Non-Dependency of Administrative Authorities to the Executive Authority – 4. Justifications for Granting the Independent Administrative Authorities the Punitive Power. – 4.1. Maintaining the State's Financial and Economic Interests (The Unique Nature of Independent Administrative Authorities). – 4.2. The Inefficiency of Criminal Penalties Imposed by Criminal Judiciary in the Economic and Financial Sectors. – 4.3. The Efficiency of Sanctions Imposed by Independent Administrative Authorities. – 5. The Constitutionality of Granting Punitive Powers to the Independent Administrative Authorities. – 6. The Accumulation of Criminal Penalties and Administrative Sanctions of Punitive Nature. – 6.1. The 'Ne bis in idem' Principle. – 6.1.1. The Legislative Basis for the 'Ne bis in idem' Principle. – 6.1.2. The Judicial Basis for the 'Ne bis in idem' Principle. – 6.2. The Accumulation of Criminal Penalties and Administrative Sanctions of Punitive Nature. – 6.3. Position of Constitutional Judiciary regarding the Accumulation of Criminal Penalties and Administrative Sanctions of Punitive Nature. – 6.3.1. The Principle of Non-Accumulation of Criminal Penalties and Administrative Sanctions. – 6.3.2. Contradiction of the Preferential Approach towards the Accumulation of Criminal and Administrative Sanctions between the Taxation and Financial Law. – 6.3.3. Grossness of Actions is a Standard of Inconsistency and Contradiction concerning the Duality of Sanctions. – 6.4. The Position of the French Court of Cassation and European Judiciary regarding the Accumulation of Criminal Penalties and Administrative Sanctions of Punitive Nature. – 6.5. Position of the European Court of Human Rights and the European Court of Justice. – 7. Conclusions.
Abstract
In France, some independent administrative authorities have been granted punitive powers concerning violations committed against stated regulatory rules. In this regard, the issue of the accumulation of penalties has been repeatedly raised concerning sanctions imposed by independent administrative authorities and criminal justice penalties. For example, a certain action could be criminalised by virtue of the Penal Law, necessitating a custodial sanction or a fine, while also considered a mere breach under financial and monetary laws, leading to the imposition of a certain financial penalty. This raises the question of whether the infliction of both criminal and administrative sanctions on financial and tax crimes violates the 'ne bis in idem' principle. The French Constitutional Council has addressed this issue extensively; it has banned the accumulation of criminal penalties and administrative sanctions of a punitive nature upon the fulfilment of certain conditions. Interestingly, these conditions did not apply to tax disputes, permitting the accumulation of penalties in this specific field. However, the accumulation of penalties was banned and deemed impermissible in financial markets. Therefore, a major question can be raised: Why has the Constitutional Council adopted two different approaches in those two similar fields?
Methods:
In pursuit of the research goals, this study employed a combination of comparative, historical, and analytical methodologies. By examining the legal nature of independent administrative authorities, this study conducts a comprehensive examination of relevant legal texts, encompassing constitutional provisions, legislation, and judicial decisions, to analyse the ne bis in idem principle in France. A comparative analysis approach was utilised to compare the rulings of the French Constitutional Council, the French Court of Cassation, and European judicial bodies.
Results and conclusions:
In various jurisdictions, including France and the EU, the principle of non-accumulation of criminal penalties and administrative sanctions is recognised, yet differences arise in its application. Jurisdictions vary in approach, with some strictly prohibiting accumulation while others allow flexibility based on factors like offence nature and societal interests. The French Constitutional Council sets standards, allowing dual penalties in tax matters but not in finance. Rulings by the French Constitutional Council and Court of Cassation offer insights into applying the principle, revealing complexities in balancing regulatory enforcement and individual rights.
About Authors
Dr.Sc. (Law), Associate Professor at the College of Law, United Arab Emirates University, Al Ain, United Arab Emirates; Associate Professor at the College of Law, Zagazig University, Zagazig, Egypt.
gehad_m@uaeu.ac.ae
https://orcid.org/0009-0006-1883-9412
Co-author, responsible for conceptualization, writing, review & editing, and data collection.
Alaa Abouahmed
Dr.Sc.(Law), Associate Professor at the College of Law, United Arab Emirates University, Al Ain, United Arab Emirates; Associate Professor at the College of Law, Helwan University, Helwan, Egypt.
alaa.m@uaeu.ac.ae
https://orcid.org/0000-0002-2276-260X
Corresponding author, responsible for research methodology, data collection, investigation, writing, review & editing, and supervising.
Competing interests: No competing interests were disclosed.
Disclaimer: The authors declare that their opinions and views expressed in this manuscript are free of any impact of any organizations.
Copyright: © 2024 Gehad Mohamed AbdelAziz and Alaa Abouahmed. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
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- AbdelAziz GM and Abouahmed A, ‘The Punitive Power of Independent Administrative Authorities: Focus on Financial and Tax Violations (A Comparative Study)’ (2024) 7(2) Access to Justice in Eastern Europe 301-24 https://doi.org/10.33327/AJEE-18-7.2-n000216
