Instruction No. 42/2010 on the Sanction Procedure by the Regional Council for the UMOA Financial Market

WEST AFRICAN MONETARY UNION crepmf REGIONAL COUNCIL FOR PUBLIC SAVINGS AND FINANCIAL MARKETS

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INSTRUCTION NO. 42/2010

ON THE SANCTION PROCEDURE BY THE REGIONAL COUNCIL ON THE UMOA REGIONAL FINANCIAL MARKET

The Regional Council for Public Savings and Financial Markets,

Having regard to the Convention establishing the Regional Council for Public Savings and Financial Markets;

Having regard to the Annex to the Convention on the composition, organization, functioning and powers of the Regional Council for Public Savings and Financial Markets, particularly Articles 30 to 38 and 45;

Having regard to the General Regulations on the Organization, Functioning and Supervision of the UMOA Regional Financial Market;

Having regard to the Decision of the Regional Council at its ordinary session on 18 May 2010;

HAS ADOPTED

Article 1

In application of the above provisions, the sanction procedure by the Regional Council on the UMOA (West African Monetary Union) regional financial market is defined, except in cases of flagrance, according to the following three phases:

• preliminary investigation,
• investigation,
• decision-making.

Article 2

The preliminary investigation may be initiated:

• by the Regional Council's General Secretariat, when its departments identify or suspect conduct contrary to the general interest and the proper functioning of the UMOA regional financial market; or
• following a referral to the Regional Council by a third party.

It is conducted by the General Secretary of the Regional Council.

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Instruction No. 42/2010

During the preliminary investigation, the General Secretary of the Regional Council may:

• summon and hear any person concerned,
• summon and hear any witness to the case,
• request the submission of any document deemed useful.

The preliminary investigation results in a report submitted to the Regional Council for review.

Upon reviewing the report, the Regional Council decides either to open an investigation or to close the file without further action.

The decision to open an investigation is notified in writing with acknowledgment of receipt to the concerned person and, where applicable, to the complainant. When a file is closed without further action, the Regional Council informs the complainant.

Article 3

The investigation is conducted by a Commission established by the Regional Council.

Its composition depends on the nature and severity of the alleged infringement. The Regional Council may appoint any external person whose skills are deemed necessary for the successful completion of the investigation to serve on the Commission.

For the purposes of the investigation, the Commission may:

• summon and hear any person concerned;
• summon and hear any witness to the case;
• request the submission of any document it deems useful.

Commission meetings are not public and take place at the Regional Council's headquarters.

However, the Commission may convene elsewhere as needed for its mission.

Upon completion of the investigation, the Commission prepares a report submitted to the President for referral to the Regional Council.

Article 4

Any person who participated in the preliminary investigation may not serve as a member of the investigating Commission.

No one may serve on an investigating Commission directed against themselves or against a legal or natural person with whom they are in some way related.

Members of the investigating Commission must not participate in the Regional Council's decision.

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Instruction No. 42/2010

Article 5

Based on the investigation report, the Regional Council summons the concerned person for a hearing prior to imposing sanctions.

The concerned person has the right to be assisted by a legal advisor of their choice.

Article 6

The Regional Council deliberates in camera, outside the presence of the investigating Commission's rapporteur and any Council member subject to the incompatibility rules under Article 4, paragraph 2 above.

If the alleged facts or acts are well-founded, the Regional Council imposes a sanction in accordance with applicable laws.

The Regional Council's decision is notified in writing with acknowledgment of receipt to the concerned person by the General Secretary.

Article 7

In application of Article 49, paragraph 1 of the Annex to the Convention, Regional Council decisions are subject to appeal before the Court of Justice of the UEMOA.

Article 8

The recourse to the procedure established by this Instruction takes place, without prejudice to the right of the Regional Council, the victim or any third party, to refer matters to the national courts of member states, in accordance with the provisions of the Annex to the Convention establishing the Regional Council for Public Savings and Financial Markets, the General Regulations or any other applicable laws.

Article 9

This Instruction, which shall be published as required, repeals Instruction No. 34/2007 of 23 November 2009 and shall enter into force as from the date of its signature.

Done at Abidjan, on 31 August 2010

The President Léné SEBGO