In its decision of 10 February 2023, the Court of Cassation ruled that the FSMA’s appeal against the Market Court’s judgment of 23 March 2022 was well founded. The Market Court’s judgment had annulled the decision of 6 October 2020 taken by the FSMA’s Sanctions Committee to impose a fine for an infringement of the prohibition against market manipulation. The Court of Cassation has now overturned the judgment of the Market Court and sent the case back to the Market Court, sitting in a different configuration.
The Court of Cassation’s decision accepts the sole plea invoked by the FSMA against the Market Court’s judgment. The first element of that plea was essentially that the Market Court wrongfully held that there was a breach of the legality principle, the proportionality principle and the obligation to provide material justification, inasmuch as the FSMA did not have a previously announced policy on fines or a rulebook setting out in detail the criteria for the application of the sanction. The second element of the plea was that by deciding that it is not sufficient for the alleged perpetrator to be able to oppose the fine called for by the Management Committee, but that the Sanctions Committee must, before imposing the sanction, inform the alleged perpetrator of the sanction that it plans to impose, the Market Court violated the legally mandated organic separation between the investigation and prosecution on the one hand, and the decision on the merits on the other hand, which is intended to guarantee the independent and impartial treatment of the case. The Court of Cassation found in favour of the FSMA on both elements.